IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


4^ 


^ 


^. 


1.0 


1.1 


11.25 


m 


^  Itt  122 

S  m  M2.0 

m 


Si 


V 


.% 


Fhotographic 

odBDOBS 

Cc 


:ii  i] 


n  WMT  MAIN  STRBT 

1MMiTM,N.V.  l4tW 

(71«)l7a-4SCIt 


4^ 


^P" 


CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICMH 
Collection  de 
microfiches. 


Cancdian  Inttituta  for  Hiatorical  Microraproduction*  /  Institut  Canadian  da  microraproductiont  hiatoriquaa 


Technical  and  Bibliographic  Notes/Notas  tachniquaa  at  bibliographiquaa 


to 


Tha  inatituta  haa  attamptad  to  obtain  tha  batt 
original  copy  avaiiabia  for  filming.  Faaturaa  of  thia 
copy  which  may  ba  bibiiographically  uniqua, 
which  may  altar  any  of  tha  imagaa  in  tha 
raproduction,  or  which  may  aignificantly  changa 
tha  uaual  mathod  of  filming,  ara  chiicitad  baiow. 


D 


D 


D 
D 


D 


Colourad  covara/ 
Couvartura  da  coulaur 


n~|    Covara  damagad/ 


Couvartura  andomhfiagAa 

Covara  raatorad  and/or  laminatad/ 
Couvartura  raataurta  at/ou  paiilcuite 


I     1   Covar  titia  miaaing/ 


La  titra  da  couvartura  manqua 

Colourad  mapa/ 

Caitaa  gtegraphiquaa  an  coulaur 

Colourad  inic  (i.a.  othar  than  blua  or  biaclt)/ 
Encra  da  coulaur  (i.a.  autra  qua  blaua  ou  noira) 


I     I   Colourad  plataa  and/or  illuatrationa/ 


Planchaa  at/ou  IKuatrationa  an  couiaur 


Bound  with  otlwr  matarial/ 
RaliA  avac  d'autraa  documanta 


Tight  binding  may  cauaa  ahadowa  or  diatortion 
along  intarior  margin/ 

La  re  liura  aarrAa  paut  cauaar  da  I'ombra  ou  da  la 
diatortion  la  long  da  la  marga  intAriaura 

Blanic  iaavaa  addad  during  raatoration  may 
appaar  within  tha  taxt.  Whanavar  poaaibia,  thaaa 
hava  baan  omittad  from  filming/ 
II  aa  paut  qua  cartainaa  pagaa  blanchaa  ajoutiaa 
lora  d'una  raatauration  apparaiaaant  dana  la  taxta, 
maia,  loraqua  caia  Atait  poaaibia,  caa  pagaa  n'ont 
paa  M  filmAaa. 


L'Inatltut  a  microfilm^  la  maillaur  axamplaira 
qu'il  iul  a  4tA  poaaibia  da  aa  procurer.  Laa  dAtaila 
da  cat  axamplaira  qui  aont  paut-Atra  uniquaa  du 
point  da  vua  bibiiographiqua,  qui  pauvant  modifiar 
una  imaga  raprodulta,  ou  qui  pauvant  axigar  una 
modification  dana  la  mithoda  normala  da  flimaga 
aont  indiqute  ci-daaaoua. 


n 

n 
0 

D 

0 
n 

D 
D 
D 


Colourad  pagaa/ 
Pagaa  da  coulaur 

Pagaa  damagad/ 
Pagaa  andommagtea 

Pagaa  raatorad  and/or  laminatad/ 
Pagaa  raataurAaa  at/ou  palliculAaa 

Pagaa  diacolourad,  atalnad  or  foxad/ 
Pagaa  dAcolorAaa,  tachattea  ou  piqutea 

Pagaa  datachad/ 
Pagaa  ditachAaa 

Showthrough/ 
Tranaparanca 

Quality  of  print  varias/ 
QualitA  inigala  da  I'impraaalon 

Includaa  aupplamantary  matarial/ 
Comprand  du  material  auppMmantaira 

Only  aditlon  ava^labla/ 
Sauk*  Mition  diaponibia 

Pagaa  wholly  or  partially  obacurad  by  arrata 
siipa.  tiaauaa,  ate,  hava  baan  rafilmad  to 
anaura  tha  baat  poaaibia  imaga/ 
Laa  pagaa  totalamant  ou  partiallamant 
obacurciaa  par  un  fauillat  d'arrata,  una  palura, 
ate,  ont  *t*  fllmAaa  A  nouvaau  da  fapon  i 
obtanir  la  maillaura  imaga  poaaibia. 


Tl 

PC 

of 
fil 


Of 
ba 
th 
•i< 
ot 
fir 
•!< 
or 


Th 
ah 
Til 
w» 

Ml 
dif 
•n 
bai 
rig 
rac 


0 


Additional  commanta:/ 
Commantairaa  aupplAmantairaa: 


Irregular  pagination. 


Thia  Itam  la  filmad  at  tha  raduction  ratio  chaclcad  balow/ 

Ca  document  aat  fllmA  au  taux  da  rMuction  IndiquA  ci-daaaoua. 

10X  14X  18X  22X 


28X 


30X 


X 


12X 


16X 


aox 


MX 


2tX 


32X 


• 

Itails 
•  du 
lodifiar 
r  una 
Imaga 


Tha  copy  filmad  hara  haa  baan  raproducad  thanka 
to  tha  ganaroaity  of: 

University  of  Alterta 
Edmontcn 

Tha  imagaa  appaaring  hara  ara  tha  baat  quality 
poaaibia  eonaidaring  tha  condition  and  lagibility 
of  tha  original  copy  and  in  icaaping  with  tha 
filming  eontraet  apaclf icationa. 


Original  copiaa  in  printad  papar  covara  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  laat  paga  ¥vith  a  printad  or  illuatratad  impraa- 
•ion,  or  tha  baeic  covar  whan  approprlata.  All 
othar  origiral  copiaa  mn  filmad  baginning  on  tha 
firat  paga  with  a  printad  or  illuatratad  impraa* 
•Ion.  and  anding  on  tha  laat  pagt  with  a  printad 
or  illuatratad  impraaaion. 


Tha  laat  racordad  f rama  on  aach  microficha 
shall  contain  tha  symbol  —«^(  moaning  "CON- 
TINUED"), or  tha  symbol  ▼  (moaning  "END"), 
whiehavar  appiiaa. 


L'axamplaira  filmA  fut  raproduit  grica  k  la 
gAnArositA  da: 

Univartity  of  Aibtrta 
Edmonton 

Las  imagas  suivantas  ont  «ti  raproduitas  avac  la 
plus  grand  soin.  eompta  tanu  da  la  condition  et 
do  la  nattat*  da  l'axamplaira  film*,  at  •» 
eonfarmit*  avac  las  conditions  du  contrat  da 
filmaga. 

Laa  axampliiiraa  originaux  dont  ia  couvartura  Bn 
papiar  aat  imprimAa  sont  fiimte  w^  commandant 
par  la  prmmimr  plat  at  an  tarminant  soit  par  ia 
darnlAra  paga  qui  comporta  una  amprainta 
d'impraaaion  ou  d'illustration.  soit  par  la  sacond 
plat,  salon  la  cas.  Tous  las  autras  axampiairas 
originaux  sont  fiimAs  an  comman9ant  par  la 
pramlAra  paga  qui  comporta  una  amprainta 
d'ir/tpraaaion  ou  d'illuatration  at  an  tarminant  par 
la  darniira  paga  qui  comporta  una  taiia 
amprainta. 

Un  daa  symbolaa  suivanta  spparaftra  sur  ia 
darniira  imaga  da  chaqua  microficha.  salon  ia 
cas:  la  symbols  *^  signifia  "A  SUIVRE",  ia 
symbolo  ▼  signifio  "FIN". 


IMapa,  platoa.  charta,  ate.,  may  ba  filmad  at 
diffarant  raduction  ratioa.  Thoaa  too  larga  to  ba 
antiraly  ineludad  in  ona  axpoaura  ara  filmad 
baginning  in  tha  uppar  laft  hand  cornar.  laft  to 
right  and  top  to  bottom,  aa  many  framaa  aa 
raquirad.  Tha  following  diagrama  illuatrata  tha 
mathod: 


Laa  cartaa.  planchas.  tablaaux.  ate.  psuvant  fttra 
film«a  A  daa  taux  da  reduction  diff«rents. 
Lorsqua  la  documant  aat  trop  grand  pour  Atra 
raproduit  w  un  saul  ciich*.  il  «st  film*  A  partir 
da  i'angia  supAriaur  gaucha.  da  gauche  A  droita. 
at  da  haut  an  baa.  an  pranant  ia  nombra 
d'imagas  nAcaaaaira.  Laa  diagrammas  suivants 
illuatrant  ia  mAthoda. 


irrata 
to 


palura, 
nA 


D 

32X 


1 

2 

3 

1 

2 

3 

4 

5 

6 

MiH 


mi 


I 


r 


.. 


•i'T-i^y: 


CASES,  CHIEFLY  RELATING 


TO  THE 


CRIMINAL 


AND 


PRESENTMENT    LAW, 

RESERVED   FOR   CONSIDERATION, 


AND  DECIDED  BY  THE 


TWELVE  JUDGES  OF  IRELAND, 

FROM  MAY,  1822,  TO  NOVEMBER,  1840. 

BY  ROBERT  JEBB,  ESQ, 

BARRISTER    AT   LAW, 


FIRST  AMERICAN   EDITION, 

WITH  REFERENCES  BY 

JOHN  WILLIAM  WALLACE. 


PHILADELPHIA: 

T.  &  J.  W.  JOHNSON,  LAW  BOOKSELLERS, 

SUCCESSORS    TO    NICKLIN    AND    JOHNSON, 
NO.  S  MINOR  STREET. 

1  842. 


»j«8»«888a^»^B^ 


L.  R.  Bailky,  Printer,  26  N.  Fifth  St. 
Philadelphia. 


LIBRARY 
UNIVERSITY  OF  ALBERTA 


PREFACE  TO  THE  AMERICAN  EDITION. 


The  favour  which  has  been  given  to  the  American  Edition  of 
the  English  Crown  Cases,  induces  the  republishing  of  a  similar 
Work  lately  issued  from  the  press  of  Dublin. 

From  the  want  of  a  Reporter,  probably,  it  has  happened  that 
the  merits  of  the  Common  Law  Judges  of  Ireland  have  not 
hitherto  been  much  known  beyond  the  limits  of  their  jurisdiction. 
The  present  volume  may  serve  to  show  that  the  appointment  of 
these  Judges  has  been  directed  by  the  same  discrimination,  which 
in  less  than  forty  years  has  given  to  another  department  of  Irish 
Law  the  services  of  Redesdale,  of  Manners,  and  of  Sugden — 
names,  than  which,  the  Jurisprudence  of  England  and  of  our  own 
country  know  none  more  authoritative. 

It  naturally  suggests  itself,  as  we  look  at  the  multiplication  of 
Reports  which  is  taking  place  around  us,  that  another  half  cen- 
tury will  probably  work  a  change  in  the  matter  of  juridical  cita- 
tions. We  have,  perhaps,  in  some  sort  lost  sight  of  the  proper 
object  of  citation.*  We  would  seem  no  longer  to  cite  cases  as 
authorities — as  showing  that  a  point  in  issue  has  been  adjudged 
by  a  court  whose  judgment  puts  an  end  to  further  question.  We 
adduce  them,  rather,  as  the  civilians  of  old  did  their  Responsa 

•  See  1  Black.  Com.  69. 


-ee44±8*- 


IV 


Prudentum,  and  ns  giving  a  position  whatever  strength  it  nnay 
derive  from  having  been  concurred  in  by  persons  of  some  official 
station,  el.«evvhere,  or  at  some  other  time.  Instead  of  this  pano- 
ramic display  of  cases  decided  by  tribunals  of  any  grade,  and  in 
every  place — often  ill  considered,  conflicting  with  one  another, 
and  not  unfreqiiently  over-ruled  by  the  same  authority  which  de- 
cided them — is  it  not  likely  that  ere  many  years  the  Bench  will  ask 
to  hear  more  exclusively  the  judgments  of  courts  of  last  resort? 
Will  not  Judges  be  forced  to  seek  relief  from  the  array  of  num- 
bers in  the  strength  of  authority?  or,  by  recurring  more  to  prin- 
ciples, regard  as  less  important  the  varied  and  ever  varying  illus- 
trations of  them? 


it 


No  authority  in  the  law  can  exceed  such  as  is  furnished  by 
reports  like  Mr.  Jebb's.  The  law  as  laid  down  by  Twelve  able 
Judges,  who,  after  hearing  a  case  well  argued,  have  consulted, 
deliberated,  and,  in  the  last  resort,  decided,  must  be  regarded  as 
of  controlling  authority.  In  addition  to  this,  Mr.  Jcbb^s  style  of 
reporting  is  very  good.  His  statement  of  the  case  is  clean  and 
orderly;  the  arguments  on  both  sides  are  well  presented;  his  ma- 
terials are  said  to  be  of  the  "  very  highest  authenticity,"  and  the 
judgment  of  the  Court  is  generally  unanimous.  The  Judges  ap- 
pear, besides,  to  have  been  in  correspondence  with  the  English 
Judges,  and  to  have  been  sometimes  assisted  by  them. 


'I 


It  may,  perhaps,  be  thought  by  the  reader,  that  many  of  the 
decisions,  being  upon  statutes  of  local  application,  must  possess 
but  local  value.  The  same  remark  might,  however,  be  made  of 
nearly  all  modern  reports,  and  not  less  in  regard  to  those  of  most 
States  of  our  Union,  than  of  the  English  reports.  In  the  present 
volume,  it  will  be  found,  that  wilh  the  construction  of  a  statute, 


the  decision  of  a  principle  is  often  connected,  and  it  is  known, 
that  in  our  American  penal  enactments,  we  have  often  drawn 
the  principles,  and  sometimes  the  language  of  our  statutes,  from 
the  legislation  of  Great  Britain. 

The  references  in  this  edition  arc  principally  to  the  "  Croim 
Cases  Reserved"  of  i?«sse//  J^^  Ryan,  and  of  Mr.  Moody— ihe  only 
reports  of  criminal  cases  which  seemed  to  me  to  possess  more 
authority  than  the  volume  of  Mr.  Jebh.  References  will,  however, 
be  also  found  'o  Russell  on  Crimes  and  Roscoe  on  Criminal 
Evidence,  as  recently  edited  by  my  friend  Mr.  Siurswood,  of  this 
Bar.  These  books  have  become  standard  text-books  on  Criminal 
Jurisprudence,  and  the  American  authorities  relating  to  their 
various  subjects  are  collated  in  them  in  a  manner  which  super- 
sedes the  power  of  doing  it  better  here.  The  Reports  of  Russell 
^  Ryan,  and  of  Moody,  have  been  lately  republished  by  the 
Messrs.  JoHNSoY  of  this  city,  and  form  the  first  two  volumes  of  a 
series  which,  under  the  title  of  British  Crown  Cases,  it  is,  I 
understand,  their  purpose  to  continue.  The  present  volume  forms 
the  third  of  this  series. 

J.  W.  WALLACE. 


&  E.  corner  of  Walnut  Sf  Sixth  Sis. 
April  2m,  1843. 


PREFACE. 


The  delay  which  has  occurred  in  the  publication  of  the  follow- 
ing Work,  since  the  first  advertisement  of  it,  has  not  been  owing 
to  the  Editor,  but  to  the  intervention  of  impediments  which  ho 
could  not  have  foreseen. 


The  materials  from  which  it  has  been  compiled  are,  though 
somewhat  scanty,  of  the  very  highest  authenticity.  In  the  few 
instances  in  which  the  Editor  has  been  enabled  to  furnish  at  any 
length  the  reasons  upon  which  the  decisions  were  founded,  his 
information  has  been  derived  from  notes  made  by  the  late  Mr. 
Justice  Jebb;  an  advantage  which  ceased  upon  the  death  of  that 
learned  Judge  in  1834. 


-. 


The  Criminal  and  Presentment  Laws  have  undergone  such 
frequent  and  important  changes  within  the  last  few  years,  that  it 
was  a  matter  of  great  perplexity  in  several  instances  to  determine 
whether  particular  cases  should  be  rejected  from  this  publication, 
as  having  been  decided  on  statutes  either  expressly  or  impliedly 
repealed,  or  should  be  retained,  as  applicable  to  the  provisions  of 
the  new  laws,  which  are  in  so  many  instances  re-enactments 
(with  slight  variations)  of  the  old.  Several  cases  have  accord- 
ingly been  excluded,  as  palpably  useless  under  the  present  law; 
and  others  have  been  retained,  which  perhaps  it  may  be  thought 
should  have  been  excluded ;  but  considering  the  dearth  of  autho- 


Vlll 

ritics  upon  the  Irish  Criminal  and  I'rcsontmont  Laws,  (cspccinlly 
tlio  latter,)  it  wns  thought  unndvisnblo  to  reject  any  case  which, 
thougjj  dociclcd  on  an  obsolete  statute,  niigiit  possibly  bear  upon 
enactments  now  in  force.  The  reader's  attention  has,  whenever 
it  appeared  necessary,  been  called  by  notes  to  the  distinctions 
between  the  present  and  the  former  law. 

The  cases  relating  to  the  Registry  of  Voters  under  the  Reform 
Act  have  been  omitted,  as  Mr.  Jllcock  has  already  given  them  to 
the  public.  For  a  similar  reason  none  of  the  decisions  upon  Civil 
Bill  Appeals,  except  those  of  very  recent  date,  have  been  inserted 
in  this  publication.  With  respect  to  the  arrangement  of  the  cases, 
it  was  found  impracticable  to  attempt  any  other  classification 
than  the  chronological;  but  the  index  at  the  end  of  the  volume 
will  make  a  reference  to  any  of  the  subjects  easy  and  expeditious. 

Dublin,  May,  1841. 


> 


(cspocinlly 
:«so  which, 
■  bcnr  upon 
,  whenever 
distinctiuns 


the  Reform 
^cn  them  to 
1  upon  Civil 
sen  inserted 
f  the  cases, 
lassification 
the  volume 
expeditious. 


I 


JUDGES  AND  LAW  OFFICERS, 


DURING  THE  PERIOD  OF  THESE  REPORTS, 


WITH  THE 


DATES   OF    THEIR    PATENTS, 


JUDGES  OF  THE  COURT  OF  QUEEN'S  BENCH. 

RuiiiT  Hon.  CiiAiiLEs  Kendal  Bushr,  C.  J.,  (February  20, 1822). 

Hon.  Richard  Jebd  (December  1,  1818), 

Hon.  Charles  Burton  (December  2,  1820). 

Hon.  Thomas  B.  Vandeleur  (March  4,  1822). 

Hon.  Philip  Cecil  CRAHirToN  (October  21,  1834). 

Right  Hon.  Louis  Pehbin  (August  31, 1835). 


JUDGES  OF  THE  COURT  OF  COMMON  PLEAS. 

Rioht  Hon.  Lord  NoRnuRT,  C.  J.,  (December  20,  1800). 
Right  Hon.  Lord  Plunket,  C.  J.,  (Juno  18,  1827). 
RiaiiT  Hon.  John  Doiierty,  C.  J.,  (December  23,  1830). 
Hon.  Arthur  JMoonr.  (July  2.1,  181G). 
Hon.  William  Johnson  (October  2.5,  1817). 
Hon.  Robert  Torrens  (July  10,  1823). 
Right  Hon,  Nicholas  Ball  (February  23,  1839.) 
B 


BARONS  OF  THE  COURT  OF  EXCHEQUER. 
Right  Hon.  Standisii  O'Gradv,  afterwards  Lord  Guillamore,  C.  B., 

(October  14,  1805). 
Right  Hon.  Henry  Jov,  C,  B.,  (January  6, 1831). 
Right  Hon.  Stkphkn  Wqulfk,  C  B.,  (July  20,  1638). 
Right  Hon.  Maziere  Brady,  C.  B.,  (1840). 
Hon.  Sir  William  C.  Smith,  Bart.,  (December  27, 1801). 
Hon.  James  M'Clelland  (November  4,  1803). 
Hon.  Richard  Pennefatiier  (February  1, 1821). 
Hon.  John  Leslie  Foster  (July  13, 1830). 
Right  Hon.  Michael  O'Loohlen  (November  10, 1836). 
Right  Hon.  John  Richards  (February  3,  1637). 


Right  Hon. 
Right  Hon. 
Right  Hon. 
Right  Hon. 
Right  Hon. 
Right  Hon. 
Right  Hon. 
Right  Hon. 
Right  Ho:  . 
Right  Hon. 


ATTORNEYS  GENERAL. 

William  C.  Plunket  (January  15, 1822). 
Henry  Joy  (June  19,  1827). 
Francis  Blackburne  (January  11,  1831). 
Louis  Perrin  (April  29,  1835). 
Michael  O'Loohlen  (August  31, 1835). 
John  Richards  (November  10,  1836). 
Stephen  Woulpe  (February  3, 1837). 
Nicholas  Ball  (July  11, 1838). 
Maziere  Brady  (February  23,  1839). 
David  R.  Pigot  (1840). 


SOLICITORS  GENERAL. 

Henry  Joy,  Esq.,  (March  1, 1822). 

John  Doeierty,  Esq.,  (June  18,  1837). 

Philip  C.  Crampton,  Esa.,  (December  23,  1830). 

Michael  O'Loghlen,  Esq.,  (October  21,  1834,  and  April  29, 1835). 

Edward  Pennefatheh,  Esq.,  (January  27,  1835). 

John  Richards,  Esq.,  (September  21,  1835). 

Stephen  Woulfe,  Esq.,  (November  10,  183G). 

Maziere  B^.ady,  Esq.,  (February  3,  1837). 

David  R.  Pigot,  Esq.,  (February  11,  18.39), 

Richard  Moore,  Esq.,  (1840). 


TABLE  OF  CASES. 


A. 

Adams  and  Langton's  Case  (Practice) 
Anonymous  (Parly  Processions'  Act) 
Antrim  Presentment  (Burning  Petition)     - 

(Seneschal)  - 

Armagh  Presentment  (Burning  Petitions) 

• (Selection  of  applications) 

Attorney  General  v.  Wilson  (Costs) 


PAGE. 

135 
155 
144 
239 
182 
141 
313 


B. 

Barran  and  Murphy's  Case  (Variance)      - 

Barrett's  Case  (Jury.  Practice)      - 

Beard's  Case  (Larceny  by  finding  and  conversion) 

Brady  and  Cooney's  Case  (Variance) 

Browne's  Case  (Venue  badly  laid) 

Bryan's  Case  (Confession.  Evidence) 

Butler,  Murphy  v.  (Replevin) 


245 
103 
0 
257 
21 
157 
320 


c. 

Cahill's  Case  (Burglary)    .  -  .  . 

Carlow  Presentment  (Lunatic  Asylum) 

(Malicious  injury) 

Carroll's  Case  (Whiteboy  offence) 

Casey  and  M'Cue's  Case  (Evidence.  Accomplice) 


3G 

188 

180 

78 

203 


n 


f 


I 


xu 


TABLE   OF   CASES. 


Cavan  Presentment  (Coroners) 

(Court  House) 

(Jurors'  Books) 

(Inspector  of  Gaol) 

■ (Surgeon  of  Gaol) 

(Ollicers'  Fees) 

Charleton's  Case  (Bigamy.  Evidence) 
Charters  v.  Gilroy  (Assistant  Barristers)    - 
Clare  Presentment  (Infirmaries)    - 

(Medical  Witnesses)   - 

(Officers'  Fees) 

Connor's  Case  (Common  Law.  Variance)  - 
Cork  Presentment  (Admiralty  Commission) 

■        (Court  House)  - 

Criers'  Fees  (In  the  matter  of) 
Crone's  Case  (Promissory  notes)   - 
Cushlan's  Case  (Uttering  a  forged  note)    - 

D. 

Deleany's  Case  (Manslaughter.  Practice)  - 
Delony's  Case  (Road  Traverse)     - 
Delany  and  Cheevers'  Case  (Jury  Practice) 
Dencny's  Case  (Chattels)  -  -  - 

Deserted  Children  (Presentments  for) 
Dogherty's  Case  (Manslaughter)   - 
Donagher's  Case  (Practice.  Privilege) 
Donegal  Presentment  (Affidavit)    - 
Doolin's  Case  (Evidence.  Witness) 
Down  Presentment  (Traverse) 
Drogheda  Presentment  (Gaol  Ollicers) 
Dwyer's  Case  (Variance.  Practice) 


PAGE. 

211 

45 

210 

95 

86 

288 

2G7 

319 

274 

.     247 

272 

150 

97 

117 

3.3 

47 

113 


88 

40 
106 
255 
184 

66 
241 

27 
123 

20 
194 
198 


TABLE  OF  CASES. 


Xlll 


PAGE. 

211 

45 

210 

95 

80 

.  288 

.  207 

.  319 

.  274 

-  247 

■  272 
.  150 

-  97 

■  117 
.   33 

-  47 

-  113 


-  88 

-  40 

-  100 

-  255 

-  184 

-  06 

-  241 

-  27 

-  123 

-  20 

-  194 

-  198 


Fermanagh  Presentment  (Fees  on  Traverses) 

(Notice  of  Traverse) 

Fitzmaiirice's  Case  (Pleading) 
Flannory's  Case  (Pleading) 
Fulton's  Case  (Intent  to  utter) 


G. 


Galvvay  Presentment  (Burning) 

(Excise) 

Gaynor's  Case  (Evidence.  Perjury) 
Getty's  Case  (Variance)    -  -  - 

GilMiey's  Case  (Evidence.  Confession) 
Gilroy,  Cliarters  v.  (Assistant  Barristers)    - 
Gourlay's  Case  (Embezzlement)     - 
Green's  Case  (Forgery.  Pleading) 

H. 

Hartnctt  and  Casey's  Case  (Practice) 

Ileflernan's  Case  (Affidavit) 

Iloulton's  Case  (Evidence.  Husband  and  Wife) 

I. 

Inspectors  of  Weights  and  Measures 


Jackson's  Petition  (Robbery) 
Jones's  Case  (Averment  as  to  time) 


K. 


Keefe's  Case  (Pleading) 
Kelly's  Case  (Pleading) 


PAGE. 

222 

•.i2l 

29 

243 

48 


71 

100 

202 
59 
15 

319 
82 

282 


302 

2 

24 


174 


203 

72 


6 
29U 


in 

11 


I! 


XIV 


TABLE   OF   CASES. 


PAGE. 

Kerry  Presentment  (Dispensaries,  &c,)      -            -  -    277 

Kildarc  Presentment  (Bridge  Contractors)             -  -     130 

(VVciglits  and  Measures)       -  -     174 

Kilkenny  Presentment  (Roads)      ....     192 

King's  Co.  Presentment  (County  Surveyor)            -  -     170 

Kinsley's  Case  (Confession)           -            -            -  -      67 

L. 

Larkin's  Case  (Variance  and  Practice)      -            -  -      60 

Lavcry,  Orr  v.  (Practice)  ....  -    280 

M. 

Maguire's  Case  ("opcal  of  statute)             -            -  -     133 

Mara's  Case  (Evidence.  Handwriting)      -            -  -       75 

Mayo  Presentment  (Boards  of  Ilcallh)      -            .  -     171 

(Shannon  Commission)            -  -     323 

M'Bennet  and  Kernigan's  Case  (Stealing)              -  -     148 

M'Clusky's  Case  (Deserter  and  Vagrant)  -            -  -     102 

M'Cue's  Case  (Evidence.  Principal  and  Accessary)  -    120 

M'Dermod's  Case  (Statutory  Riot)            -            -  .118 

M'Kearney's  Case  (Burglary.  Breaking)    -            -  -      1)9 
Meany's  Case  (Escape)     .....    249 

Meath  Presentment  (Bridge  Contractors)  -            -  -     139 

—  (Vagrants)      -            -            -  .289 

Monaghan  Presentment  (Medical  OfTicers)            -  -    217 

• (Registering  Arms)          -  -    1 1 1 

Moore's  Case  (Burglary)  -            -            -            -  37,  note 

Moran's  Case  (Witness.  Practice)            -            -  -      91 

Murphy's  Case  (Principal  and  Accessary)              -  .315 
Murphy  in  replevin,  v.  Butler        ....    320 


I 


k 


WH 


PAGE. 

277 
189 
174 
192 
176 
67 


60 
280 


-  133 

-  75 

-  171 
.  323 

-  148 

-  162 

-  120 

-  118 

-  99 

-  249 

-  139 

-  289 

-  217 

-  Ill 
37,  note 

'  91 

-  315 

-  320 


TABLE   OF   CASES. 


N. 


Noonan's  Case  (Discretionary  Punishment) 


O. 


Orr  V.  Lavcry  (Practice)  - 

Oulaghan's  Case  (Practice.  Discharging  Jury) 


P 


;|^     Pettit's  Case  (Common  Law.  Variance)    - 
■     Prendergast's  Case  (Perjury) 

Prosecutors'  expenses  (In  the  matter  of)    - 
—  (Clerk  of  the  Crown's  Fees) 

Q. 

Queen's  Co.  Presentment  (Defauhing  co'.Iectcr)     - 

(Dispensaries)    - 

■ (Government  Advances) 

' — (Road  Traverse) 

R. 

Rcilly's  Case  (Larceny.  Bailee)     - 
l^     Reserved  Cases  (Counsel) 

I     • (Decisions  upon)  - 

i     Robbery  Petition  -  -  .  .  . 

Robinson's  Case  (Evidence) 

Rogan's  Case  (Highway  Robbery) 

Roscommon  Presentment  (Roads) 

Rossiter's  Case  (Statutory  Larceny) 

Ryan's  Case  (Evidence.  Party  to  Record) 

S. 
Sandys's  Case  (Evidence.  P.Iinutes) 


XV 

PAGE. 
108 


280 
270 


151 
64 
42 
41 


231 

130 

235 

40 


51 

1 

234 

202 

280 

02 
172 

50 


160 


XVI 


TABLE   OF   CASES. 


Shnnnon's  Case  (Common  Law.  Variance) 
Slicchan's  Case  (Evidence.  Accomplice)    - 
Southwell,  in  re  (Practice) 
Staploton's  Case  (Husband  and  Wife.  Coercion) 
Strabane  Presentment  (Pro|)cr  time  of) 
Stonage's  Case  (Evidence.  Minutes) 


PAGE. 

54 
KM 

93 
145 


Tierncy's  Case  (Perjury)  - 

Tippcrary  Presentment  (Division  of  County) 

'(Printing)  - 

(Roads)     - 

Tyrone  Presentment  (Dungannon) 

■  (Strabane)     - 

(Defaulting  Treasurer) 


-  179 

-  310 
101,  254 

-  307 

-  147 

-  145 

-  224 


W. 

Walsh's  Case  (Evidence.  Handwriting)    -            -            -  38 

Westrneath  Presentment  (Bridge)  ....  295 

Wicklow  Presentment  (Contractors)           -            .            -  191 

(Infirmary)              .            .            -  102 

(Medical  Officers  of  Bridewells)      -  44 

Medical  Officers  of  Gaols)  .            -  43 

Willis's  Case  (Utterance  of  Base  Coin)      -            -  48,  note 

Wilson,  Attorney  General  v.  (Costs.  Proof)           -            -  313 

Woods's  Case  (Evidence.  Uttering)          .            .  -  115 


MEMORANDUM  IN  THE  DUIJLIN  EDITION. 

No  Act  lins  yet  been  passed  (in  conformity  with  tlic  Bill  inentionecl  in  page  182, 
note)  extending  tho  G  &.  7  VV.  4,  c.  IIG,  to  tlie  County  and  County  of  the  City  of 
Dublin. 


PAGE. 

.  200 

MH 

.       54 

-  104 

-   93 

1 

-  145 

-  1^1 

-  179 

-  310 

101,  254 

i 

-  307 

; 

-  147 

^ 

.  145 

i 

-  224 

.wo 

-   38 

-  295 

f 

-  191 

».! 

-  102 

M 

-   44 

m 

-   43 

m 

48,  note 

m 

-    313 

m 

115 


CASES 

RESERVED  FOR  CONSIDERATION, 


AND    DECIDED   IN 


THE  KING'S  BENCH  CHAMBER. 


ci  in  page  182, 
of  the  City  of 


RESOLUTION   OF  THE   TWELVE  JUDGES  OF  IRELAND  AS  TO 
HEARING  COUNSEL  ON  RESERVED  CROWN  CASES,  (o) 

At  a  meeting  of  the  twelve  Judges  in  Hilary  Term, 
1826,  it  was  agreed,  that  the  English  practice  should 
be  adopted  of  hearing  counsel  on  reserved  crown  cases, 
when  the  Judge  who  tried  the  case  should  desire  it. 

For  the  purpose  of  ascertaining  the  English  practice, 
Bushe,  C.  J.,  wrote  to  the  Lord  Chief  Justice  of  Eng- 
land, who  informed  him  of  the  particulars  of  that  prac- 
tice. The  summary  of  it  is,  that  if  the  Judge  who 
reserved  the  case  thinks  it  of  such  a  nature  that  counsel 
should  argue  it,  it  generally  is  argued  by  one  counsel 
on  each  side;  the  argument  is  in  open  court,  but  the 
Judges  do  not  deliver  any  opinion  in  court;  the  opinion 
is  made  known  by  the  Judge  who  presides  at  the  next 
assizes  or  sessions,  as  in  cases  where  counsel  are  not 
heard. 

(«)  Extracted  from  a  MS.  notebook  of  the  lute  Mr.  Justice  Jebl-.    (See  post.  p. 
234.)  I      »  f 


«0 


JEBB'S  RESERVED  CASES. 


[May 


*  THE  KING  V.  HEFFERNAN. 


An  indictment  under  tlic  27th  G.  3.  c.  15,  s.  10,  will  be  sustained  by  evidence  of 
BU|)plying  ammunition  to  a  person  wlio  only  pretended  to  get  it  for  the  use  of  the 
Whitcboys. 


'i; 


The  prisoner  was  tried  before  M^  CMland,  B.,  at  a  spe- 
cial commission  held  in  the  City  of  Cork,  in  February, 
1822,  upon  an  indictment  founded  upon  the  10th  section 
of  the  27  G.  III.  c.  15,  for  supplying  ammunition  con- 
trary to  the  provisions  of  that  act  («).  The  first  count 
charged  that  divers  ill-disposed  persons  had  confederated 
and  agreed  feloniously  to  seize  forcibly  all  arms  belong- 
ing to  his  majesty's  faithful  subjects,  and  that  the  pri- 
soner feloniously  did  knowingly  and  voluntarily  supply 
to  one  William  Fleming  14  pounds  of  gunpowder,  bul- 
lets and  flints,  for  the  purpose  of  assisting  said  confede- 
rates in  the  execution  of  said  offence.  The  second, 
third,  fourth,  fifth,  sixth,  seventh,  and  eighth  counts, 
varied  from  the  first  only  in  the  statement  of  the  objects 
of  the  confederacy,  viz.  to  levy  contributions  from  his 
majesty's  subjects,  and  to  cause  by  threats  arms  to  be 
delivered;  and  the  ninth,  tenth,  eleventh,  and  twelfth 


(fl)  This  enactment  is  still  in  force,  as  far  as  relates  to  the  offence  of  supplying 
ammunition;  tliough  that  part  of  the  same  section  which  relates  to  the  seizing  of 
arms,  or  levying  contributions,  is  repealed  by  1  tSt  2  VV.  4  c.  44.  (Sco  Rex  v.  Ma- 
guire,  post.) 


1822. 


REX   r.   HEFFEUNAN. 


counts  charged,  that  the  prisoner  supplied  Fleming  with 
the  powder,  &c.,  for  the  purpose  of  assisting  di\  ers  ill- 
disposed  persons  to  seize  arms,  to  levy  contributions,  &c. 


by  evidence  of 
)r  the  use  of  the 


.,  at  a  spe- 
February, 
0th  section 
nition  con- 
first  count 
)nfederated 
ms  belong- 
at  the  pri- 
:ily  supply 
)wder,  bul- 
id  confede- 
he  second, 
ith  counts, 
the  objects 
s  from  his 
arms  to  be 
ind  twelfth 


ICC  of  supplying 
to  the  seizing  of 
(Sco  Rex  V.  Ma- 


It  appeared  in  evidence  on  the  trial,  that  the  country 
was  in  a  disturbed  state,  and  tl.  t  the  magistrates  of  Cork 
and  its  vicinity,  suspecting  the  prisoner  to  be  engaged  in 
selling  gunpowder  to  the  Whitehoys,  employed  Fleming 
*  to  apply  to  the  prisoner  for  gunpowder,  which  [*3] 
he  accordingly  did,  calling  at  the  prisoner's  shop  at  nine 
o'clock  at  night,  for  that  purpose.  The  prisoner  asked 
him  for  what  purpose  he  wanted  the  powder,  and  he 
answered,  "for  the  use  of  the  Whiteboys.^^  He  then 
got  from  the  prisoner  two  pounds  of  powder,  and  agreed 
with  him  for  a  cask  for  the  use  of  the  Whitchoijs.  In  a 
second  interview,  the  prisoner  said  it  would  be  danger- 
ous to  give  a  cask  of  powder,  and  he  therefore  gave 
Fleming  14  pounds  in  different  parcels,  and  some  bullets 
and  flints.  Upon  these  two  occasions  the  prisoner  sug- 
gested to  Fleming  the  expediency  of  forming  committees 
to  superintend  the  business  of  the  Whiteboys,  and  to 
take  measures  for  a  general  rising. 

G'Connell,  for  the  prisoner,  contended  that  on  this 
evidence  no  conviction  could  take  place,  for  that  to  con- 
stitute the  crime  laid  in  the  indictment  it  is  not  sufficient 
that  the  prisoner  should  have  supplied  the  ammunition 
with  intent  to  aid  the  Whiteboys  to  commit  the  offences 
specified  in  the  act,  or  some  of  them ;  but  the  per.son 


T 


JI'}DU'S   RESERVED  CASES. 


[M.y 


who  received  said  ammunition  must  also  have  agreed 
and  have  intended  to  use  and  apply  the  ammunition  to 
siieli  purpose ;  and  that  in  this  case  although  the  jury- 
should  be  of  opinion  that  the  prisoner  supplied  the  am- 
munition witii  the  view  and  purpose  laid  in  the  indict- 
ment, yet  as  Fleming  never  agreed  or  intended  to  apply 
the  ammunition  to  such  purpose,  the  jury  ought  to  be 
directed  to  acquit  the  prisoner.  The  learned  Baron, 
With  the  approbation  of  Mom'e,  J.,  (who  was  associated 
v/ith  him  in  the  commission,)  told  the  jury,  that  before 
they  could  convict  the  prisoner,  they  must  be  satisfied, 
first,  that  such  confederacy  existed  as  was  laid  in  the 
[*4]  indictment,  and  secondly,  that  *the  prisoner,  know- 
ing of  such  confederacy,  did  supply  the  ammunition  to 
Fleming  for  the  purpose  of  aiding  and  assisting  the  con- 
federates in  the  execution  of  the  offences,  or  some  of 
them,  laid  in  the  indictment;  that  in  his  opinion  the 
assent  or  agreement  of  Fleming  to  such  purpose  was  not 
necessary  to  complete  the  crime  of  the  prisoner,  but  that 
his  criminality  must  depend  on  his  ow?i  acts  and  inten- 
tions; and  that  if  they  were  satisfied  that  the  prisoner 
supplied  the  ammunition  to  Fleming  with  the  view  and 
for  the  purpose  of  assisting  the  Whitehoys  to  commit 
any  of  the  offences  laid  in  the  indictment,  they  ought  to 
find  liie  prisoner  guilty,  although  they  were  satisfied 
Fleming  never  intended  or  agreed  to  apply  the  ammu- 
nition to  any  such  purpose.  The  jury  found  the  pri- 
soner guilty,  and  the  learned  Baron  reserved  for  the 
opinion  of  the  Judges  the  question  as  to  whether  his 


I 


[May 

ive  agreed 
unition  to 
I  the  jury 
sd  the  am- 
the  indict- 
i  to  apply 
ight  to  be 
3d  Baron, 
associated 
hat  before 
3  satisfied, 
aid  in  the 
ler,  know- 
unition  to 
ig  the  con- 
)r  some  of 
wnion  the 
se  was  not 
r,  but  that 
and  inten- 
e  prisoner 
view  and 
0  commit 
Y  ought  to 
B  satisfied 
he  ammu- 
i  the  pri- 
id  for  the 
lether  his 


}833.] 


REX   p.   HEFFERNAN. 


directions  to  the  jury  were  right  in  point  of  law,  or  whe- 
ther he  should  have  directed  them  as  required  by  the 
counsel  for  the  prisoner. 

The  TWELVE  JUDGES  unaiiii.iously  ruled  that  the  con- 
viction was  legal,  and  that  tlie  case  was  within  the  sta- 
tute. They  held  that  the  word  "  purpose"  in  sec.  10, 
meant  "  intent"  or  "  design"  of  the  person  supplying 
the  ammunition,  and  that  "supply"  meant  "give"  or 
"furnish;"  and  that  it  was  not  necessary  that  the  per- 
son receiving  .should  concur  in  the  purpose,  nor  that  the 
purpose  should  be  completed. 


JEnD'8   RKHERVRD  CASES. 


[Moy 


*  THE  KING  V.  RYAN  AND  OTHERS. 


A  man  jointly  indicted  witli  otliuri),  and  wlio  linN  pleaded  not  guilty,  cannot  Ix)  a 
witness  for  the  proBecutiun,  wliiliit  liia  plea  stand*. 


At  the  Dimdalk  Summer  Assizes  in  1821,  Peter  Cod- 
dinr/ton,  John  Ryan,  and  Owen  Matthews,  were  jointly 
indicted  for  burglary,  and  at  the  same  assizes  tliey 
were  respectively  arraigned,  and  severally  pleaded  not 
guilty;  their  trial  however  was  then  postjjoned  on 
motion  on  the  part  of  the  Crown.  At  the  Spring  As- 
sizes in  1822,  the  trial  came  on  before  Johnson,  J.,  and 
John  Ryan  and  Owen  Matthews  only  were  given  in 
charge,  and  the  jury  were  sworn  on  the  issue  joined  by 
them  with  the  Crown.  After  the  prosecutor  had  been 
examined,  Peter  Coddington,  whose  plea  of  not  guilty 
had  not  been  withdrawn,  was  produced  as  a  witness 
for  the  Crown.  He  was  examined,  and  the  prisoners 
then  on  trial,  Ryan  and  Matthews,  were  found  guilty. 
The  learned  Judge  respited  the  judgment,  until  the 
Judges  should  have  determined  the  question  as  to  the 
competency  of  Coddington  as  a  witness. 

It  was  unaiimously  held  by  eleven  judges  (Vande- 
LEUR,  J.,  being  absent  from  illness)  that  the  conviction 
was  bad,  and  that  the  witness  ought  not  to  have  been 
received.     It  was  agreed,  that  no  case  could  be  found, 


[May 


1899.] 


REX   V.   RYAN    AND  OTHERS. 


s. 

!ty,  cannot  bo  a 

Peter  Cod- 
ero  jointly 
sizes  they 
leaded  not 
tjjonej  on 
Spring  As- 
'on,  J.,  and 
B  given  in 
5  joined  by 
r  had  been 
not  guilty 
I  a  witness 
i>  prisoners 
ind  guilty. 
,  until  the 
in  QB  to  the 


where  an  accomplice,  he  being  himself  comprised  in  the 
same  indictment,  and  his  plea  of  not  guilty  remaining 
of  record,  had  been  admitted  as  a  witness.  The  objec- 
tion appeared  to  Jedb,  J.,  to  rest,  not  so  much  on  the 
incompetency  of  the  witness,  as  on  a  rule  of  practice, 
adopted  partly  from  analogy  to  the  doctrine  of  approve- 
ment, and  partly  on  this  ground,  that  being  a  party  to 
the  record,  he  shall  not  be  examined,  while  the  record, 
so  far  as  it  concerns  him,  is  *  undecided.  The  [*(>] 
following  authorities  were  discussed  and  considered: 
1  Hale's  P.  C.  303;  Cas.  Temp.  Hardw.  154;  2  Camp. 
333,  note;  5  Esp.  154;  1  Strange  663;  8  East,  41;  2  B. 
Moore,  9;  8  Taunt.  139;  (4th  E.  C.  L.  48);  7  T.  R. 
610;  Bull.  N.  P.  308;  2  Hawk.  P.  C.  c.  46,  ss.  90,  91. 

At  the  ensuing  Summer  Assizes,  Jebb,  J.,  delivered 

I  the  opinion  of  the  Judges,  and  further  declared  their 

opinion  that  the  prisoners  should  not  be  indicted  af^ain 

for  this  crime,  their  lives  having  been  once  in  jeopardy. 


ss  (Vande- 

convicticn 

have  been 

1  be  found, 


T 


JEBB'S   RESERVED  CASES. 


[May  32 


:<;!. 


The  KING,  at  the  Prosecution  of  the  Governors  of  the  ROYAL 
HOSPITAL,  V.  MICHAEL  KEEFE. 

An  indictment  under  the  46  G.  3,  c.  69,  b.  8,  for  personatinif  J.  H.  (a  deceased 
person)  "tlie  said  J.  H.  being  tlicn  and  tiiere  a  person  supposed  to  be  entitled," 
(or,  "being  a  person  entitled,")  "to  &  certain  pension,"  is  bad.  Semhle,  that  a 
good  indictment  might  be  framed  for  personating  a  deceased  man  in  order  to 
receive  a  pension,  although  the  person  applied  to  for  the  pension  knew  that  the 
party  personated  was  dead. 

The  first  count  of  the  indictment,  which  was  founded 
upon  the  46  G.  III.  c.  69,  s.  8,  (a)  charged  that  the 
prisoner,  "on  the  10th  of  October  in  the  second  year  of 
"the  reign,  knowingly  and  feloniously  did  personate 
"and  falsely  assume  the  name  and  character  of  one 
"Jeremiah  Heahj,  the  said  Jeremiah  Heahj  being  then 
"  and  tliere  a  person  supposed  to  be  entitled  to  a  certain 
"  pension,  allowance,  and  relief,  to  wit,  a  pension,  &c. 
"at  the  rate  of  Is.  l^d.  a  day,  as  a  soldier,  theretofore 
"  in  the  service  of  our  Lord  the  King,  to  wit,  in  the  12th 
"  [*7}  Veteran  Battalion,  who  *  had  theretofore  been 
"  entitled  to  his  discharge,  and  been  discharged  by  rea- 
"  son  of  the  expiration  of  the  period  of  service  fixed  by 
"  his  majesty's  orders  for  the  soldiers  in  the  said  batta- 
"lion,  to  wit,  at,  &c.,  in  order  to  receive  the  same 
"  pension,  allowance,  and  relief,  in  contempt  of  our  said 
"  Lord  the  King  and  his  laws,  against  the  peace,  and 
"  the  statute  in  such  case,"  &c. 


(a)  This  net  is  no  longer  in  f  ir<;o;  but  siniilur  provisions  arc  contained  in  the 
7  G.  4,  c.  16,  s.  38,  and  tlic  2  W.  1,  c.  53,  s.  41). 


[May  22 


1822.] 


REX   V.   MICHAEL    KEEFE. 


ihe  ROYAL 


■  H.  (a  deceased 
to  be  entitled," 
Setnhle,  that  a 
man  in  order  to 
n  knew  that  the 


as  founded 
id  that  the 
)nd  year  of 
L  personate 
!ter  of  one 

being  then 
to  a  certain 
3nsion,  &c. 
theretofore 
in  the  12th 
tofore  been 
^ed  by  rea- 
ce  fixed  by 

said  batta- 
I  the  same 

of  our  said 

peace,  and 

coutttiacd  in  tiic 


The  second  count  stated  Jeremiah  Heahj  to  be  a 

''person  entitled  to  a  certain  pension  of  £5  2s.  A\d. 

"  being  for  a  certain  number  of  days,  to  wit,  ninety-one 

"  days,  from  the  25th  of  September,  to  the  24th  of  De- 

"cember,  1821,  at  Is.  Ud.  per  day."     The  third  count 

was  the  same  as  the  first,  except  that  it  stated  the  intent 

to  be,  "in  order  to  receive  a  part,  to  wit,  a  sum  of  £5 

"  25.  A\d.  part  of  the  said  last-mentioned  pension,  &c., 

"and  which    part  was   then   and    there    payable    in 

"  advance,  that  is  to  say,  for  and  on  account  of  a  cer- 

"tain  number  of  days,  to  wit,  ninety-one  days,  from 

"25th  September,  to  24th  December,  1821." 

The  trial  came  on  before  Lefroy,  Serjt.,  at  the  Spring 
Assizes  for  the  City  of  Cork  in  1822;  and  the  prisoner 
having  been  arraigned,  and  pleaded  not  guilty,  it  was 
proved  that  a  pension  had  been  granted  to  Jeremiah 
Heahj,  and  a  pension  bill  issued  from  the  Paymaster's 
Office  to  the  Post-office  at  Cork,  directed  to  Jeremiah 
Heahj;  that  the  prisoner  had  applied  for  it  to  the  Post- 
master, representing  himself  to  be  Jeremiah  Healij,  who 
was  proved  to  be  dead  at  the  time  of  the  application. 
The  Post-master,  at  the  time  of  the  application,  was 
aware  that  Healt/  was  dead,  and  that  a  person  intended 
to  apply  for  the  pension  in  his  name;  and  therefore, 
when  the  prisoner  had  made  *  his  application,  and  [*8] 
had  answered  the  necessary  questions,  he  had   him 
arrested. 


hi 


JEBD'S  RESERVED  CASES. 


[May 


The  prisoner  was  found  guilty,  and  tiie  learned 
Serjeant,  at  the  request  of  the  counsel  for  the  Crown 
(the  prisoner  being  undefended),  -eserved  for  the  con- 
sideration of  the  Judges  the  question,  "whether,  inas- 
"  much  as  the  pensioner  Jeremiah  Heahj  was  dead  when 
"the  prisoner  applied  for  the  pension  bill  under  his 
"  name,  he  was  guilty  of  personating  a  person  within 
"  the  meaning  of  the  act  of  parliament  of  46  G.  3,  o. 
"  69,  s.  8." 

It  was  unanimously  held  by  the  eight  Judges  who 
were  present  {ahsentibus  O'Grady,  C.  B.,  Smith,  B., 
and  Vandeleur  and  Joiinson,  J.  J.),  that  upon  the 
form  of  this  indictment,  all  the  counts  of  which  repre- 
sented Heahj  to  be  alive,  the  conviction  was  bad;  but 
they  expressed  a  strong  opinion,  that  a  good  indictment 
might  be  framed  under  the  statute,  in  a  case  where  a 
deceased  man  was  personated  (a),  and  that  although 
the  party  personated  was  known  to  be  dead  at  the  time 
of  the  application,  by  the  person  applied  to  by  the 
prisoner. 


(o)  See  Rex  v.  Fitzmaurice,  post  20,  where  a  conviction  was  had  on  a  count 
"  thut  the  prisoner  did  personate  anotiicr  person,  to  wit,  &c.  supposed  to  be  entitled, 
&c.  and  did  so  personate  in  order  to  receive,"  &c.  See  also  Rr.x  v.  Martiii,  Russ. 
&,  Ry.  324;  and  Rex  v.  Cramp,  id.  327,  where  convictions  were  liad  on  a  similar 
statute,  on  properly  framed  indictments. 


[May 

he  learned 
the  Crown 
for  the  con- 
ether,  inas- 
dead  when 

under  his 
•son  within 

46  G.  3,  0. 


Fudges  who 
Smith,  B., 
it  upon  the 
^hich  repre- 
as  bad;  but 
L  indictment 
;ase  where  a 
at  although 
I  at  the  time 
i  to  by  the 


1822. 


REX  j>.  BEARD, 


s  had  on  a  count 
)oscd  to  be  entitled, 
'.X  V.  Martiii,  Russ. 
i  liad  on  a  similar 


*  THE  KING  V.  BEARD. 

A  person  finding  a  draft  upon  a  banker,  and  tendering  it  for  payment  with  the 
intention  of  converting  the  proceeds  to  his  own  use,  knowing  at  the  time  that 
ho  is  not  the  person  entitled  to  receive  tlic  amount,  is  guilty  of  felony.  "Draft 
and  order  for  payment  of  money"  is  a  sufRcient  description  within  the  meaning 
of  a  statute  which  makes  the  stealing  of  a  warrant  Cor  payment  of  money,  felony. 

In  this  case  the  following  Report  was  sent  by  Sir  Jonas 
Greene,  Recorder  of  Dublin,  to  the  Judges. 

"Upon  the  26th  of  April,  1822,  John  Beard  was  con- 
victed before  me  as  Recorder,  and  Messrs.  Trevor  and 
Nugent,  Aldermen,  upon  an  indictment  charging  him 
with  having  feloniously  stolen  a  draft  and  order  for  the 
payment  of  £100,  concluding  against  the  Statute;  and 
the  question  shortly  is,  whether,  under  the  circum- 
stances which  appeared  in  evidence,  and  as  hereafter 
detailed,  the  offence  of  the  prisoner  amounted  to  a  felony. 

"  Robert  King  swore  that  he  was  a  student  of  Trinity 
College,  that  he  had  received  from  his  mother,  for  the 
purpose  of  collection,  a  draft  for  £100  upon  Finlai/s 
bank,  drawn  payable  to  himself  or  bearer;  that  on  the 
morning  of  the  17th  of  April  then  instant,  he  left  the 
college  with  the  draft,  and  in  order  to  receive  the 
amount  of  it;  that  he  had  the  draft  in  one  of  the  pockets 
of  his  pantaloons;  that  there  was  another  paper  in  tlie 
same  pocket  loose  and  detached  from  the  draft:  tliat  the 


JEBB'S   RESERVED  CASES. 


[June  28 


pocket  was  buttoned ;  that  on  leaving  the  College  there 
was  some  crowd  befoi-c  the  College  railing,  through 
which  crowd  he  passed;  that  in  his  way  to  the  bank 
he  missed  the  draft,  the  pocket  however  continuing 
buttoned,  and  the  other  paper  remaining  in  the  pocket; 
that  he  could  not  say  lie  felt  any  liand  at,  or  pressure 
upon,  or  towards  the  pocket.  That  on  missing  the 
draft  he  went  immediately  to  the  bank,  and  gave  direc- 
tions that  if  presented  for  payment  it  should  be  stopped. 

[*10]  "  Robert  Law,  one  of  tlie  Firm  of  the  Banking 
House  of  Finlay  and  Company,  swore  to  the  facts  of  Mr. 
King  calling  at  the  bank,  and  giving  the  directions  above- 
mentioned  :  he  further  stated,  that  in  a  very  few  minutes 
after  Mr.  Kin(fs  call  at  the  bank,  the  prisoner  appeared 
there,  and  presented  to  him,  (witness)  the  draft  for 
payment :  that  after  looking  at  it,  he  asked  the  prisoner 
whom  he  got  it  from,  and  the  prisoner's  answer  was, 
from  Mr.  King ;  that  on  witness's  making  some  remark 
as  to  the  falsity  of  this  statement,  the  prisoner  then  said 
he  had  received  it  from  a  gentleman  at  the  post-office 
whom  he  did  not  know,  who  desired  that  he,  the  pri- 
soner, would  rcvieive  the  amount  of  the  draft  for  him, 
and  that  he  would  give  prisoner  a  compensation  for  his 
trouble.  The  draft  was  duly  identified.  The  prisoner 
called  no  witnesses. 


■r:''i 


"In  my  charge  to  the  jury  I  directed  them  in  the 
first  place  to  consider  whether  the  draft  was  stolen  from 


[June  28 

[lejie  there 
r,  through 
I  the  bank 
3ontinuing 
he  pocket; 
r  pressure 
lissing  the 
nrave  direc- 
be  stopped. 


le  Banking 
facts  of  Mr. 
[ions  above- 
BW  minutes 
jr  appeared 
e  draft  for 
he  prisoner 
nswer  was, 
>me  remark 
iv  then  said 
post-office 
le,  the  pri- 
ift  for  him, 
ition  for  his 
he  prisoner 


tiem  in  the 
I  stolen  from 


REX   V.   BEARD. 


10 


Mr.  King,  and  I  added,  that  if  such  was  their  conclu- 
sion upon  the  evidence,  the  case  would  be  the  common 
and  familiar  one  of  stolen  property  found  instantly  after 
the  fact  upon  the  prisoner,  and  unaccounted  for;  and 
thai  with  respect  to  the  law  in  such  a  view  of  the  trans- 
action, there  could  be  no  difficulty.  But  if  they  should 
come  to  a  different  result  upon  the  evidence,  and  be  of 
opinion  that  the  draft  was  not  stolen  from,  but  dropped 
by,  Mr.  King,  and  that  the  prisoner  acquired  the  ori- 
ginal possession  innocently;  then  I  directed  them  to 
consider  whether  the  prisoner,  with  a  knowledge  of  the 
value  of  the  draft,  and  that  he  was  not  justly  autho- 
rised to  receive  the  amount  of  it,  conceived  the  intention 
of  fraudulently  converting  it  to  his  own  use,  and  to 
effectuate  such  intention,  tendered  it  at  the  bank  for 
payment;  and  if  they  should  come  to  such  result,  then 
*I  directed  them,  upon  the  authority  of  some  [*11] 
recently  published  cases,  to  find  the  prisoner  guilty. 

"The  jury,  after  a  short  deliberation,  found  the 
prisoner  guilty;  and  upon  a  very  particular  commu- 
nication with  them  as  to  the  grounds  of  their  finding, 
they  stated  that  their  inferences  upon  the  case  were, 
that  Mr.  King  had  dropped  the  draft,  and  that  it  was 
net  stolen  from  him;  that  the  prisoner  afterwards  found 
it,  (thus  negativing  his  allegation  that  lie  had  received 
it  from  another,)  but  that  fully  apprised  of  the  value  of 
the  draft,  and  that  he  was  not  the  person  who  in  justice 
should  receive  its  amount,  he  determined  fraudulently 


u 


JEBB'S   RESERVED  CASES. 


[June  28 


to  convert  it  to  his  own  use,  and  foi  that  purpose,  and 
to  accomplish  such  his  intent,  made  the  tender  of  it  for 
payment,  as  proved  by  Mr.  Law. 

"  The  recently  published  cases  to  ^/hich  I  alluded, 
are  to  be  found  in  (2  Russ.  on  Cr.  102,  Sharswood's  ed. 
Phil.,  1841,)  and  as  they  are  short,  I  take  leave  here  to 
transcribe  the  passage : — '  The  doctrine  as  to  a  felonious 
'  taking  of  goods  which  have  been  found  by  the  party, 
'  was  further  confirmed  in  two  more  recent  cases ;  in 
'  the  first  of  these  cases  it  appeared  that  a  pocket-book 
'  containing  bank  notes  had  been  found  by  the  prisoner 
'  in  the  highway,  and  afterwards  converted  by  him  to 
'his  own  use;  upon  which  Lawrence,  J.,  observed,  that 

*  if  the  party  finding  property  in  such  manner  knows 
'  the  owner  of  it,  or  if  there  be  any  mark  upon  it  by 
'which  the  owner  can  be  ascertained,  and  the  parly, 
'instead  of  restoring  the  property,  converts  it  to  his 
'  own  usie,  such  conversion  will  constitute  a  felonious 
'  taking.  And  in  the  subsequent  case  the  two  prisoners 
'(father  and  son,)  were  convicted  of  stealing  a  bill  of 
'exchange,  upon  evidence  of  their  having  found  and 

*  [*12]  converted  it  to  their  own  use,  by  endeavouring  to 

*  negociate  it.     Gihbs,  J.,  stated  to  the  jury  that  it  was 

*  the  duty  of  every  man  who  found  the  property  of  an- 

*  other,  to  use  all  diligence  to  find  the  owner,  and  not  to 

*  conceal  the  property,  {which  was  actually  stealing  it,)  and 

*  appropriate  it  to  his  own  use.'  I  apprehend  the  case 
herein  respectfully  submitted  to  the  Judges  is  not  on 


[June  28 


1822.] 


REX   V.   BEARD. 


13 


irpose,  and 
er  of  it  for 


I  alluded, 
swood's  ed. 
ave  here  to 

a  felonious 
r  the  party, 
t  cases;  in 
pocket-book 
;he  prisoner 
i  by  him  to 
served,  that 
mer  knows 
upon  it  by 
[  the  party, 
ts  it  to  his 

a  felonious 
vo  prisoners 
ing  a  bill  of 

found  and 
eawuring  to 
T  that  it  was 
perty  of  an- 
r,  and  not  to 
iling  it,)  and 
end  the  case 
3s  is  not  on 


principle  to  be  distinguished  from  those  cases  in  Russell, 
and  that  it  is  quite  a  parallel  case  to  that  before  Gibbs, 
J.  Under  an  impression  that  the  doctrine  of  constructive 
felony  had  been  carried  quite  far  enough  and  ought  not 
to  be  extended,  except  upon  the  authority  of  solemnly 
considered  and  adjudged  cases,  I  certainly  feel  a  diffi- 
culty, notwithstanding  the  cases  in  Russell,  in  deter- 
mining that  the  facts  in  the  prisoner's  case  did  constitute 
a  felony,  for  I  was  not  aware  of  any  case  prior  to  those 
alluded  to  explicitly  deciding  that  a  conversion  of  pro- 
perty, even  with  a  fraudulent  intent,  when  the  original 
possession  was  purely  and  bond  fide  by  finding  consti- 
tuted a  felony.  As  to  the  case  before  Lawrence,  J.,  it 
does  not  appear  that  there  was  a  conviction;  and  in 
neither  instance  does  it  appear  that  there  //ls  a  reference 
to  the  Judges. 

"Lord  Hale,  in  his  Pleas  of  the  Crown,  vol.  1,  page 
606,  lays  down  the  law  thus :  '\i  A.  finds  the  purse  of 
<  B.  in  the  Highway,  and  takes  it  and  carries  it  away, 

*  and  hath  all  the  circumstances  that  may  prove  it  to  be 
'  done  animo  furandi,  as  denying  it,  or  secreting  it,  yet 

*  it  is  no  felony.'  Lord  Coke,  in  his  3d  Institute,  page 
108,  says,  *  if  one  lose  his  goods,  and  another  find  them, 

*  though  he  convert  them  animo  furandi,  to  his  own 
'  use,  yet  it  is  no  larceny,  for  the  first  taking  is  larvfuV 
Leigh's  case,  to  be  found  in  2d  East's  Crown  Law,  p. 
694,  and  in  2d  Russell,  *  page  1090,  (Russ.  on  Cr.  [*13] 
133,  Sharswood's  ed.  Phil,  1841,)  which  was  decided 


13 


JFOnn'S   RESERVED  CASES, 


by  all  the  Judges,  (with  the  exreption  of  one  absent) 
may  be  considered  liighly  material.  The  prisoner  there 
was  found  by  the  jury  to  have  had  an  original  innocent 
possession  (having  with  an  honest  purpose  saved  some 
articles  from  a  fire  in  the  house  of  a  neighbour),  but 
afterwards  to  have  conceived  the  resolution  of  appropri- 
ating them  fraudulently  to  her  own  use,  and  with  that 
view  to  have  secreted  them  and  denied  the  possession  of 
them.  They  found  the  prisoner  guilty ;  but  the  judges 
were  of  opinion  that  there  was  no  felony,  the  original 
taking  not  having  been  with  an  intent  to  steal.  Some 
other  cases  possibly  bearing  upon  the  question  are  those 
respecting  coachmen  finding  articles  in  their  carriages, 
after  setting  down  their  fares,  most  of  which  appear  to 
be  collected  in  Rex  v.  Wynne,  1  Leach,  413,  and  among 
them  LamVs  case,  in  1694,  (very  shortly  and  unsatis- 
factorily stated,)  and  which  would  seem  to  make  the 
conversion  a  felony,  on  the  ground  that  the  proprietor 
of  the  goods  was  traceable,  to  the  knowledge  of  the 
prisoner;  an  observation  applicable  undoubtedly  to  the 
case  under  discussion. 


"As  larceny  includes  a  trespass,  and  therefore  a 
taking  from  the  possession,  I  presume  the  principle  of 
the  decisions  by  Lawrence  and  Gibhs,  J.  J.,  was  that  the 
legal  possession  continued  unaltered  in  the  owner,  and 
that  the  fact  of  fraudulently  converting  or  attempting 
to  convert  the  property  to  the  prisoner's  own  use  was 
a  taking;  indeed  Gihbs,  J.,  is  made  to  say,  that  the  con- 


I  Juno  28 


1832; 


REX   1).   BEARD. 


13 


me  absent) 
soner  there 
al  innocent 
saved  some 
hbour),  bvit 
3f  appropri- 
l(1  with  that 
lossession  of 
t  the  judges 
the  original 
teal.    Some 
on  are  those 
sir  carriages, 
;h  appear  to 
,  and  among 
and  unsatis- 
to  make  the 
le  proprietor 
edge  of  the 
btedly  to  the 


therefore  a 
principle  of 
was  that  the 
e  owner,  and 
ir  attempting 
own  use  was 
that  the  con- 


cealment is  stealing,  a  position,  however,  which  does 
not  appear  to  be  recognised  (but  the  contrary)  by  the 
Judges  in  LeiyU's  case,  which  I  have  taken  the  freedom 
of  alluding  to. 

'« I  think  it  proper  to  remark,  that  since  the  trial  it 
occurred  *to  me  that  there  was  a  misdescription  [*14] 
of  the  instrument  in  the  indictment,  in  being  called  a 
draft  and  order  for  payment  of  money ;  and  on  a  refer- 
ence to  the  statute  which  makes  the  stealing  of  choses 
in  action  felony  («),  I  find  that  the  words  draft  or  order 
do  not  occur  in  it,  and  that  the  designation  of  the  instru- 
ment should  be  '  Warrant  for  'payment  of  money  or  bill 
:  of  exchange.' " 

■  '  It  was  held  by  all  the  eight  Judges  present,  (viz. 
.BusiiE,  C.  J.,  Smith,  B.,  M'Clelland,  B.,  Moore,  J., 
Johnson,  J.,  Jeub,  J.,  Burton,  J.,  and  Pennefatiier, 
B.)  who  delivered  their  opinions  seriatim,  that  the  facts 
constituted  a  felonious  taking,  and  that  the  conviction 
was  right.  The  decision  of  the  iudges  was  founded  on 
j ,  the  authority  of  the  cases  then  lately  decided,  in  2  Russ. 
Cr.  Law,  1044-5;  (2  Russ.  onCr.  133,  Shirswood's  ed. 
iPhil,  1841;)  and  most  of  the  Judges  considered  those 
I  cases  as  not  perfectly  reconcileable  with  the  principles 
laid  do^vn  by  Coke  and  Hale. 

(a)  3  G.  2,  c.  4,  b.  3  (now  repealed.    Tlic  9  G.  4,  o.  55,  s.  5,  contains  tlic  worda 
"order,  or  oilier  security"). 

So,  if  clmltcls  be  jfiveii  to  u  pcrMon  tor  u  special  purpose,  and  at  the  time  of 
such  delivery  the  person  mean  to  convert  them  to  his  own  use,  und  docs  so  convert 


m 


14 


JEDH'S  RESERVED  CASES. 


[November 


them,  licid  to  bo  larceny.  Rex  v.  Slock,  1  Moody  87.  Sco  also  Rex  v.  Waltfi,  1 
RiiHii.  Sl  Ry,  315;  where  the  rulinjr  of  the  Judp:o  nt  circuit,  on  tliiH  point,  was  not 
overruled.  But  if  a  bailee  liavinff  posHCHsion  oh  well  ns  cuHtody,  and  having  re- 
ceived the  property  with  good  intention,  !<ub8e(pienlly  conceive  the  idea  of  convert- 
ing' it,  and  do  bo,  held  not  larceny.  Rex  v.  Banks,  Ruhh.  Sc  Ry.  4-11.  Rex  v, 
Mueklow,  I  Moody  IfiO.  Rex  v.  Smith,  id.  47.3.  The  King  v.  Reily,  post  51.  See 
also  Rex  v,  Miidox,  Rush.  &.  Ry.  Ul.  Rut  if  the  owner  part  with  the  custody 
merely  and  not  with  the  posscsNion,  held  larceny  though  the  design  of  takin;^  ho 
ailer-conceivcd,  Rex  v.  WNamee,  1  Moody  3ti8.  .See  also  Rex  v.  Harding,  Russ. 
&.  Ry.  125.  Rex  v.  Draxier,  id.  .3.37.  Roscoc's  Criminal  Evid.  540,  ond  seq., 
Sharswood's  cd.  Phil.  1840.  2  Rubs,  on  Clinics,  100,  and  seq.,  Sliarswood's  cd. 
Phil.  1841. 


[*15] 


THE  KING  V.  GIBNEY. 


Confession  admissible,  although  apparently  induced  by  tho  acts  of  tho  parties  who 
conducted  tho  prisoner  to  gaol;  those  acts  being  calculated  to  excite,  not  fear  of 
temporal  punishment,  but  horror  at  tho  recollection  of  tho  crime. 


m 


The  prisoner  was  indicted  for  the  murder  of  Margaret 
Gilmey,  an  infant  of  the  age  of  nine  months,  by  throw- 
ing her  into  ?.  bog-hole,  whereby  she  was  suffocated 
and  drowned;  and  was  tried  before  Johnson,  J.,  at  the 
summer  assizes  at  Cavan,  in  1822,  and  the  case  rested 
upon  a  confession  made  by  the  prisoner  under  the  cir- 
cumstances detailed  in  the  following  statement  of  the 
evidence.  The  learned  Judge  received  the  confession 
in  evidence,  but  reserved  a  question  as  to  its  admissi- 
bility, for  the  opinion  of  the  Judges.  The  prisoner's 
wife  had  been  indicted  jointly  with  him,  but  was 
acquitted. 


i 


[November 

Ux  T.  \Yal»K  1 
I  pniiit,  was  not 
and  having  rc> 
idea  of  convert. 
p  411.  Rrx  V. 
\l,  post  51.  f'JO 
ill  tlio  custody 
rn  of  takin;t  *>o 
Harding,  Rush. 
,  ,'i'tO,  and  Hcq., 
bharawood'H  cd. 


'  tho  partici  who 
xcite,  not  fear  of 


^f  Margaret 
,  by  throw- 
suffocated 
w,  J.,  at  the 
case  rested 
der  the  cir- 
ment  of  the 
e  confession 
its  admissi- 
le  prisoner's 
Q,  but  was 


REX   t>.  GIBNEY. 


IS 


A  child,  supposed  to  be  tho  child  in  question,  had 
been  found  drowned  in  a  bog-hole,  and  at  the  time 
stated  in  the  testimony  of  the  witness  by  whom  it  was 
sought  to  give  the  confession  in  evidence,  was  lying  in 
a  field  adjoining  the  high  road,  with  a  crowd  of  people 
about  it. 

Thomas  Lennon  stated  that  he  was  a  constable ;  re- 
membered the  time  the  child  was  found;  knew  the 
prisoner,  and  identified  him;  saw  him  on  the  24th  of 
May;  went  to  take  him;  found  him  in  custody  with 
Mr.  Young,  the  magistrate,  before  whom  he  had  been 
brought;  he  was  then  given  in  custody  to  witness;  wit- 
ness was  bringing  him  to  the  gaol,  and  passed  near 
where  the  body  lay.  Being  asked  the  usual  questions 
previous  to  giving  a  confession  in  evidence,  he  said  he 
held  out  no  hope  to  the  prisoner,  nor  used  any  threat  to 
induce  him  to  confess.  The  prisoner  first  denied  know- 
ing any  thing  of  the  matter,  *and  did  so  before  [*l(i] 
the  magistrate.  On  their  way  to  the  gaol  they  came 
by  the  field  adjoining  the  road  where  the  body  was 
lying.  The  road  and  field  were  full  of  people ;  all  knew 
what  the  prisoner  was  charged  with ;  the  people  desired 
witness  to  bring  the  prisoner  where  the  body  was  lying, 
that  he  might  touch  it;  witness  had  heard  of  a  super- 
stitious notion  prevailing  among  country  people,  as  to 
the  effect  of  a  murderer  touching  the  body  of  the  person 
murdered.  After  the  prisoner  had  come  to  the  body, 
and  before  he  said  any  thing,  a  man  of  the  name  of 


10 


JKUH'S  iii;ai;RVF,i)  cases. 


|Ni)vonibfr 


Kenny,  son  to  the  person  with  Avljoni  the  prisoner  had 
lived  as  a  servant,  took  him  aside,  ajid  held  some  con- 
versation with  him;  what  it  was  the  witness  did  not 
know.  (This  man  was  not  produced.)  Another  con- 
stable, who  was  with  witness,  also  spoke  to  the  prisoner 
on  the  way,  before  they  came  to  the  place  where  the 
child  was;  witness  did  not  hear  him  hold  out  any  hope 
or  use  any  threat  to  the  prisoner,  but  could  not  say  he 
heard  all  he  said  to  him.  One  o1)ject  of  bringing  the 
prisoner  to  the  dead  body  was,  that  lie  might  sec  whe- 
ther the  body  was  the  body  of  his  child  or  not.  The 
body  was  200  or  300  yards  from  the  road.  The  prisoner 
said  nothing  to  witness  while  he  was  in  the  field ;  he  was 
brought  to  the  body  and  touched  it;  the  people  were 
about  him,  and  talking  on  the  subject  of  the  murder. 
After  he  had  brought  away  the  prisoner,  and  had  pro- 
ceeded about  a  tpiarter  of  a  mile  towards  the  gaol, 
witness  said  to  him,  "  You  must  be  a  very  unhappy 
"boy  to  have  murdered  your  own  child,  if  it  be  the 
"case."  The  prisoner  was  crying  very  severely.  Witness 
t  lien  said,  "  Did  you  kill  the  child  ?"  The  prisoner  then 
said  he  had  done  so,  about  a  fortnight  before  Maij-day ; 
that  he  had  applied  to  his  mother  to  rear  the  child,  and 
she  had  refused  him,  and  that  he  had  applied  to  his 
[*17]  master  for  *  money,  but  he  had  also  refused  him, 
and  that  he  had  no  money  or  means  to  provide  for  it ; 
that  he  had  tied  up  the  child  and  put  it  in  a  hole  in  the 
bog ;  that  he  had  remained  out  long  enough  to  make 


iNdvoiiibor 


laaaj 


RRX  r.   (JIDNKY. 


IT 


isoiu^r  hiul 
some  con- 
88  (litl  not 
lothcr  con- 
110  prisoner 
where  the 
it  any  hope 

not  say  lie 
ringing  the 
ht  see  whe- 

not.    The 
'he  prisoner 
eld ;  he  was 
people  were 
he  murder, 
id  had  pro- 
8  the  gaol, 
ry  unhappy 
if  it  be  the 
ly.  Witness 
irisoncr  then 
e  May-day ; 
e  child,  and 
plied  to  his 
refused  him, 
ovidc  for  it;  ' 
1  hole  in  the 
iffh  to  make 


people  think  he  had  time  to  go  to  his  mother's  with  the 
child. 

On  his  cross-examination  the  witness  said  there  was 
much  conversation  among  the  people  in  the  hearing  of 
the  prisoner  about  the  nurdcr;  the  only  time  the  pri- 
soner was  at  a  distance  from  witness  was  whilst  he  was 
.  talking  with  Kenny.    The  prisoner  did  not  make  a  con- 
fession until  after  ho  hud  seen  his  wife,  in  the  place 
where  the  body  lay,  and  the  body.     The  prisoner  had 
been  before  tlie  magistrate  before  witness  received  him 
under  a  committal.     Witness  heard  the  people  on  the 
road  say,  that  the  prisoner  was  charged  with  the  murder 
of  his  own  child,  and  that  he  ought  to  be  hanged,  if 
guilty;  this  was  in  the  hearing  of  prisoner,  and  before 
ftny  confession.   When  they  came  into  the  field,  the  cry 
of  the  people  was  greater ;  this  was  calculated  to  affect 
^the  mind  of  the  prisoner.     He  cried  bitterly  from  the 
time  witness  got  him  into  custody.     When  witness 
asked  him  did  he  kill  his  child,  he  did  not  tell  him  he 
^  would  give  what  he  said  in  evidence,  and  ho  did  not 
|suppose  the  prisoner  thought  he  would.     He  said  he 
»nvas  willing  to  die,  and  hoped  God  would  have  mercy 
Ion  him.   Dr.  Fitzpatriclc,  who  was  present,  was  anxious 
Hhat  the  prisoner  should  touch  the  body;  witness  had 
\eard  an  opinion  that  if  the  murderer  touches  the  body 
of  the  person  he  has  killed,  the  nose  of  the  deceased 
person  will  bleed.    Witness  thought  the  other  constable 
spoke  to  the  prisoner  first,  as  to  whether  he  had  killed 


SI  I 


17  JEHU'S   RKSERVED  CASES.  [November 

the  child.  Witness  had  stopped  a  little,  and  when  he 
[*18]  came  up,  the  prisoner  and  *the  other  constable 
appeared  in  conversation,  and  the  witness  asked  the 
prisoner  if  he  had  killed  the  child. 

The  next  witness,  Arthur  Foster,  stated  that  he  was 
a  constable ;  that  he  held  out  no  threat  or  promise  to 
him  before  or  after  they  came  to  the  field ;  the  prisoner 
was  brought  to  the  body  in  the  hope  that  his  conscience 
might  strike  him;  soon  after  leaving  the  field  witness 
said  to  the  prisoner,  "Was  he  not  a  terrible  man  to  do 
such  a  thing?"  Before  this  the  prisoner  had  a  conver- 
sation with  another  man,  which  witness  did  not  hear. 
The  other  witness  and  the  prisoner  conversed  about  the 
child,  and  upon  both  the  witnesses  again  expressing 
.  themselves  on  the  subject  of  its  death,  the  prisoner  said 
his  conscience  would  not  let  him  conceal  it  any  longer, 
and  he  then  confessed.  Neither  he  nor  the  last  witness 
held  out  any  threat  or  hope  to  him. 


On  his  cross-examination,  he  said  that  he  and  the 
prisoner  had  some  conversation  before  they  came  to  the 
field ;  witness  and  the  other  constable  several  times  told 
him  what  a  terrible  offence  he  had  committed;  that  it 
was  a  terrible  thing  for  a  man  to  murder  his  own  child ; 
witness  meant  nothing  by  what  he  said  but  to  make  the 
prisoner  tell  the  truth.  The  prisoner  always  denied  the 
charge  until  after  they  had  been  in  the  field.  Witness 
did  not  tell  the  prisoner  the  consequence  of  the  confes- 


^ 


[November 

id  when  he 
er  constable 
3  asked  the 


that  he  was 
'  promise  to 
the  prisoner 
3  conscience 
ield  witness 
B  man  to  do 
ad  a  conver- 
id  not  hear. 
3d  about  the 
L  expressing 
)risoner  said 
any  longer, 
last  witness 


he  and  the 
came  to  the 
al  times  told 
tted;  that  it 
s  own  child ; 
to  make  the 
'^s  denied  the 
d.  Witness 
f  the  confes- 


1832.] 


REX   V.   GIBNEY. 


18 


sion;  believed  he  was  not  aware  it  would  be  given  in 
evidence  on  the  trial. 

The  question  arising  upon  the  foregoing  evidence 
was,  whether  the  confession  in  this  case  did  not  resillt 
!i  from  the  circumstance  of  the  prisoner's  mind  being  ex- 
•  cited  to  terror  *by  the  acts  and  speeches  of  the  [*19] 
persons  through  whom,  and  by  whom,  the  prisoner  was 
conducted  to  gaol;  and,  therefore,  whetl^.er  it  was  such 
a  voluntary  confession  as  ought  to  be  given  in  evidence 
against  the  prisoner. 

All  the  judges  being  present,  it  was  theii  unani- 
mous opinion  that  the  confession  was  properly  received 
in  evidence.  Some  of  the  Judges  at  first  had  doubts, 
but  they  finally  concurred  with  the  rest.  They  held 
the  rule  to  be  well  established,  that  a  vo-  untary  confes- 
sion shall  be  received  in  evidence,  but  if  hope  has  been 
excited,  or  threats,  or  intimidation  held  out,  it  shall  not. 
The  fear,  however,  to  be  produced,  must  be  of  a  tempo- 
ral nature,  and  in  this  case  there  was  no  such  threat  or 
intimidation,  nor  any  fear  of  a  temporal  nature  produced ; 

I  any  terror  that  might  have  been  excited  was  as  to  what 

I  might  happen  in  the  next  world. 

I 

On  account  of  the  extraordi  nary  circumstances  of  the 
'  case,  the  prisoner  was  recommended  to  mercy;  end  he 
was  not  executed. 


VJ 


JEBB'S   RESERVED   CASES. 


[Novcml)cr 


S.  P.  Rex  V.  Gillinm,  1  Moo.  18G,  a  case  considerably  stronger  tlinn  the  present, 
and  which  iippears  to  hiivc  been  ful'.y  nrjfucd;  also  Rex  v.  Wild,  id.  4.59.  The  rule 
ndiniltcd  in  the  principal  case  as  to  confession  induced  by  hopes  or  fears  of  a  tempo- 
ral nature,  was  conlirnied  in  Rex  v.  (Iriffin,  Russ.  «fc  Ry.  1.51,  Rex  v.  Junes,  id.  152. 
Rex  V.  Jenkins,  id.  4!)2.  Rex  v.  Upchurch,  1  Moo.  4(i.5.  See  also  Rex  v.  Row,  Russ. 
&.  Ky.  153,  and  Rex  v.  Thornton,  1  Moo.  37.  In  Row's  case,  sup.,  the  prisoner's 
ncijjhbours,  who  had  notiiiiii;  to  do  with  the  apprehension,  officiously  interfered, 
and  adnionislicd  tiie  prisoner  to  tell  the  truth  and  consider  his  family,  and,  appa- 
rently, ill  conscipirnco  of  tiiis  lie  did  confess  to  the  constable,  about  ."  t  liour  after- 
wards. Held  admissible.  Sec  also  The  King  v.  Bryan,  post  1.57.  o,  however, 
Sherrington''s  ease,  Liverp.  Sp.  Ass.  1838,  2  Lewiii's  C.  C.  123.  On  the  subject 
generally,  sec  Roscoc's  Crim,  Evid.  37,  dkc.,  Phil.  1840.  Russell  on  Crimes,  G44, 
&.C,,  id.  1841, 


[*20]    IN  the  Matter  of  a  PPESENTMENT  by  the  GRAND 
JURY  of  the  County  of  DOWN. 


I1!l 


Where  a  presentment  was  made,  witiiout  being  traversed,  of  a  certain  sum  to  be 
paid  by  instalments;  and  at  the  next  assizes  a  presentment  was  made  of  one  of 
these  instalments:    Held,  that  a  traverse  did  not  lie  to  the  latter  |>resuntmcnt. 


At  the  Summer  Assizes  for  the  County  of  / '  .'p-n,  in 
1822,  Jehb,  J.,  reserved  for  the  consideration  of  the  ^  udges 
a  question  whether  a  traverse  of  a  presentment  for 
£  2000,  tendered  at  those  Assizes,  lay,  under  the  follow- 
ing circumstances. 


At  the  Spring  Assizes  in  1821,  the  Grand  Jury  pre- 
sented the  sum  of  £  60,000  to  be  raised  off  the  County 
at  large,  for  the  purpose  of  building  a  new  County  Gaol, 


[November 


1823.1     PRESENTMENT  BY  THE  GRAND  JURY,  &c. 


30 


thnn  the  present, 
id.  4,")2.  Tlie  rule 
■  fears  of  a  tciiipo- 
!  V.  Junes,  ill.  152. 
Kexv.Iiow,  Russ. 
1]).,  the  prisoner's 
ciously  interfered, 
\iinihj,  and,  appa- 
out ."  T  hour  iifli-'r- 
7.  0,  however, 
,  On  the  8ul)ject 
1  on  Crimes,  644, 


the  GRAND 


certain  sum  to  be 
rns  made  of  one  of 
ter  (iresiintmcnt. 


01  >'■-  )vn,  111 
ofthuv-Lidges 
entment  for 
Br  the  foUow- 


nd  Jury  pre- 
f  the  County 
County  Gaol, 


and  by  the  said  presentment  directed  that  the  sum 
should  be  raised  by  half-yearly  instalments  of  £  2000 
each,  and  they  presented  the  first  half-yearly  instalment. 
They  also  appointed  twelve  commissioners  to  carry  the 
presentment  into  effect,  pursuant  to  the  50  Geo.  III.  c. 
103  (a).  The  commissioners  approved  of  a  plan  and 
estimate,  fixed  on  a  site  for  the  new  gaol,  and  had  the 
ground  valued  by  a  jury,  but  did  not  take  a  conveyance 
of  the  ground,  nor  enter  into  possession  ot  it,  nor  com- 
mence nor  contract  for  the  building.  In  these  prelimi- 
nary acts  they  incurred  an  expense  of  £3000.  The 
plan  and  estimate  were  subsequently  approved  of  by  the 
Lord  Lieutenant,  but  no  contract  was  laid  before  him, 
nor  entered  into  by  the  commissioners.  At  the  Sum- 
mer Assizes  in  1821,  and  the  Spring  Assizes  in  1822, 
presentments  were  passed  for  the  half-yearly  instalments 
of  £2000,  and  these  with  the  first  instalments  were 
levied.  At  these  two  last  Assizes  it  appeared,  from  cer- 
tain *  other  plans  and  estimates  which  had  been  [*21] 
procv^red,  that  the  then  present  gaol  might  be  sufficiently 
enlarged  for  the  sum  of  £  2000,  and  it  became  a  matter 
\  of  discussion  among  the  gremd  jury  whether  they  should 
I  proceed  upon  the  original  expensive  plan,  or  adopt  the 
I  more  economical  one.  The  majority  of  the  grand  jury, 
|at  the  Summer  Assizes  m  1822,  were  in  favour  of  the 
former,  and  accordingly  presented  an  instalment  of 


(o)  The  provisions  of  this  Act  have  been  adopted  by  the  7  G.  4.  c.  74,  wliieh  is 
still  in  force,  subject  to  the  additional  provisiouB  of  the  6  &.  7  W.  4.  c.  116,  b.  124. 

4 


21  JEBB'S  RESERVED  CASES.  [February  19 

£  2000.    It  was  to  this  instalment  that  the  traverse  in 
question  was  tendered. 


Km 

if 


l\ 


The  Judges  were  unanimously  of  opinion  that  the 
traverse  did  not  lie;  on  the  ground  that  a  traverse  does 
not  lie  to  the  presentment  of  an  instalment  which  is  the 
mere  execution  of  a  previous  presentment  which  might 
have  been  traversed  (a). 


(a)  The  6  &  7  W.  4.  c.  116,  s.  133,  enacts,  "  that  prtientmenta  shall  be  traversed 
orly  at  the  Assizes  at  which  tlio  presentments  shoil  be  made." 


THE  KING  V.  BROWNE  and  Others. 


An  indictment  for  abduction  stated  in  one  count,  that  the  prisoners,  on  &c.,  at  &,c., 
upon  one  H.  G.  then  and  there  being',  did  make  an  assault,  and  her  the  said  H- 
G,  did  carry  away.  Another  count  stated,  in  the  same  terms,  an  assault  and 
abduction  by  persons  unknown,  and  that  the  prisoners  were  then  and  there  pre- 
sent, aiding  and  abetting.  Held  by  eight  Judges  against  three,  that  the  indict- 
ment was  bad  for  want  of  a  venue. 

It  is  no  valid  objection  that  such  an  indictment  under  the  19  6.  3,  c.  13,  concludes 
against  the  form  of  the  "statute,"  instead  of  "statutes." 


The  first  count  of  the  indictment  charged  that  the  pri- 
soners, "  being  evil-disposed  persons,  and  not  regarding 
"  the  laws  and  statutes  of  this  realm,  on  the  10th  day  of 
"  March,  in  the  3d  year  of  the  King,  with  force  and 
"arms,  at  Gkngurt,  in  the  County  of  Limerick,  in  and 


[February  19 


lo23.] 


REX  V.   BROWNE. 


21 


traverse  in 

3n  that  the 
averse  does 
^^hich  is  the 
^hich  might 

shall  be  traversed 


rs. 


irs,  on  Sec,  at  &c., 
id  her  the  said  H- 
118,  an  assault  and 
hen  and  there  pre. 
se,  that  the  indict. 

3,  c.  13,  concludes 


that  the  pri- 
LOt  regarding 
3  10th  day  of 
th  force  and 
erick,  in  and 


"  upon  one  Honora  Goolde,  in  the  peace  of  God  and  of 
*  our  Lord  the  *  King  then  and  there  being,  did  [*22] 
"  feloniously  make  an  assault,  and  her  the  said  Hofiora 
"  Goolde  did  feloniously  and  by  force  take  and  carry 
"  away  against  her  consent,  with  intent  that  the  said 
*'John  Browne  should  feloniously  marry  her  the  said 
"  Honora  Goolde,  against  the  peace,  &c.  and  against  the 
•  "  statute  in  such  case  made  and  provided."  The  second 
count  varied  only  in  substituting  the  word  "  defile"  for 
"  marry."  The  third  count  charged  "  that  certain  per- 
"  sons  unknown,  on  &c.,  with  force  and  arms,  at  Glen- 
**  gurt,  in  the  County  of  Limerick  aforesaid,  in  and  upon 
*'  the  said  Honora  Goolde,  in  the  peace  of  God  and  our 
"said  Lord  the  King  then  and  there  being,  did  felo- 
¥nionsly  make  an  assault,  and  her  the  said  Honora 
"  Goolde  did  feloniously  and  by  force  take  and  carry 
"  away  against  her  consent,  with  intent  that  the  said 
**  John  Browne  should  feloniously  marry  her;  and  that 
- "  the  said  (prisoners)  were  and  each  of  them  was  then 
"  and  there  feloniously  present,  aiding  and  abetting,  &c., 
"the  said  unknown  persons  in  the  felony  aforesaid, 
**  against  the  peace,  &c.,  and  against  the  statute  in  such 
I"  case  made  and  provided."  The  fourth  count  differed 
|from  the  third,  as  the  second  did  from  the  first;  and  it 
%lso  omitted  the  words,  "  then  and  there,"  before  "  felo- 
niously present." 

At  the  trial  before  Torrens,  Serjeant,  at  the  Summer 
Assizes  for  the  County  of  Limerick,  in  1822,  the  prison- 


m 


23 


JEBD'S   RESERVED   CASES. 


[February  19 


ers  were  convicted ;  and  when  they  were  brought  up  to 
receive  sentence,  it  was  moved  by  their  counsel  in  arrest 
of  judgment :  First,  that  there  was  no  venue  laid  as  to 
where  the  offence  of  the  abduction  was  committed;  the 
venue  laid  and  the  words  "  then  and  there"  being  appli- 
cable only  to  the  felonious  assault.  Secondly,  that  the 
indictment  concluded  "  against  the  form  of  the  statute,^^ 
[*23]  whereas  it  ought  to  have  *  concluded  "  against 
the  form  of  the  statutes.'^  The  learned  Serjeant  having 
reserved  these  questions,  ten  of  the  judges  met  (Lord 
Norbunj,  C.  J.  C.  Pleas,  and  Smith,  B.,  being  absent). 
Eight  Judges  {Bushe,  C.  J.,  a  Grady,  C.  B.,  M'Clelr 
land,  B.,  Fletcher,  J.,  Moore,  J.,  Jebh,  J.,  Burton,  J.,  and 
Vandeleiir,  J.,)  held  that  the  indictment  was  bad,  for 
want  of  a  venue  to  the  averment  of  the  abduction ;  and 
that  the  authorities,  Df/er,  69  a,  and  2  Hale,  ISO,  were 
in  point.  Johnson,  J.,  and  Pennefather,  B.,  thought  that 
the  third  count  was  good  on  this  ground ;  that  it  stated 
that  the  prisoners  were  "  then  and  there"  present,  aid- 
ing and  assisting,  &c.;  that  these  words  were  words  of 
reference  to  something  that  went  before,  and  the  only 
time  and  place  mentioned  before  being  those  which  pre- 
ceded the  assault,  these  words  referred  to  the  venue  of 
the  assault;  and  that  if  this  were  so,  then,  inasmuch  as 
it  was  averred  that  they  were  then  and  there  aiding  and 
assisting  in  the  felony,  it  followed  that  the  felony  was 
then  and  there  committed. 

But  to  this  it  was  answered  by  the  other  Judges,  and 


.......»<r 


[February  19 

ought  up  to 
sel  in  arrest 
le  laid  as  to 
mitted;  the 
being  appli- 
ily,  that  the 
the  statuUy'' 
ed  "against 
jeant  having 
;  met  (Lord 
}ing  absent). 
B.,   WCMr 

irton,  J.,  and 
was  bad,  for 
iuction;  and 
h,  180,  were 
thought  that 
that  it  stated 
present,  aid- 
i^ere  words  of 
md  the  only 
se  which  pre- 
I  the  venue  of 
,  inasmuch  as 
re  aiding  and 
tie  felony  was 


1823.] 


REX  e.  BROWNE. 


83 


resolved,  that  the  authorities  cited  established,  that  the 
felony  being  laid  without  a  venue  is  not  to  be  intended 
to  be  committed  at  the  time  and  place  at  which  the 
assault  was  committed,  but  may  have  been  committed 
at  another  time  and  place;  that  "then  and  there"  when 
prefixed  to  the  averment  of  the  felonious  abduction,  are 
words  of  reference  to  the  time  and  place  of  the  abduc- 
tion, and  not  to  the  time  and  place  of  the  assault ;  and 
that  it  is  not  necessary  that  tlie  time  and  place  should 
be  defined  in  order  to  constitute  them  words  of  refer- 
ence, but  that  they  may  refer  to  an  undefined  time  and 
place. 

I  Upon  the  other  point,  all  present  were  unanimous  in 
Jl^holaing  that  there  was  no  valid  objection  on  [*24] 
account  of  the  word  "statute"  being  in  the  singular 
number  [a). 


{a)  The  indictment  was  founded  on  the  19  Geo.  II.  c.  13,  s.  2,  which  is  in  tlie 

following  terms : — "  Be  it  further  enacted,  &c.  That  if  any  maid  or  woman  be 

"  taken  or  carried  away  by  force  against  her  consent,  with  an  intent  to  marry  or 

"defile  such  maid  or  woman  contrary  to  the  true  intent  and  meaning  of  the  said  in 

"part  recited  Act  (6  Ann.  c.  16),  every  such  person  so  taking  and  carrying  away 

"  by  flirce  and  against  the  consent  of  such  maid  or  woman,  any  maid  or  woman 

'  "  with  intent  to  marry  or  defile  her,  and  the  aiders  and  procurers  of  such  forcible 

;  "taking  and  carrying  away  such  maid  or  woman,  and  all  as  well  principals  as 

i "  accessaries  before  such  f-ct  committed,  shall  be  deemed  and   adjudged  to  be 

I  "  felons,  and  shall  suffer  pam  of  death  without  benefit  of  clergy  or  statute,"  &c. 

I  (The  10  Geo.  IV.  c.  34,  s.  22,  is  tlie  corresponding  enactment  at  present  in  force.) 


r  Judges,  and 


21 


JEDB'S   RESERVED   CASES. 


[May  7,  9 


THE  KING  V.  IIOULTON  and  Others. 


The  prosecutor's  wife  is  a  competent  witness  for  tlio  defence.  It  is  no  objection 
to  the  testimony  of  a  wife,  that  siic  is  brouglit  to  contradict  tho  testimony  of 
her  hushand. 


The  prisoner  was  convicted  of  an  assault  and  riot  at 
the  sessions  of  Moate,  before  James  Lyne,  Esq.  Assistant 
Barrister  and  Chairman  for  the  county  of  Westmeath. 
A  letter  was  received  by  Biishe,  C.  J.,  from  Mr.  Gregory, 
the  Under  Secretary  of  State,  conveying  the  desire  of 
the  Lord  Lieutenant,  that  he  should  take  the  opinion 
of  all  the  Judges,  whether  the  conviction  was  legal  and 
proper,  and  whether  certain  evidence  had  been  properly 
rejected  by  the  court;  and  in  case  it  had  not,  what  the 
Judges  would  recommend  to  be  done.  There  were  two 
indictments :  one  for  unlawfully  entering  the  house  of 
one  Thomas  Moffatt,  and  assaulting  him,  and  his  wife, 
Jane  Moffatt ;  and  the  other  indictment  for  a  riot.  The 
prisoner  was  a  Roman  Catholic  priest ;  it  appeared  on 
the  trial  that  the  woman,  Jane  Moffatt,  being  dangerously 
ill,  had  received  the  sacrament  from  the  Protestant  cler- 
[*25]  gyman  *  of  the  parish,  and  that  both  she  and  her 
husband  were  Protestants ;  that  on  the  following  day 
the  prisoner,  the  Roman  Catholic  parish  priest,  came  to 
Moffatfs  house,  and  insisted  on  administering  to  the 
woman  the  rights  of  the  Roman  Catholic  church,  and 
that  he  was  resisted  by  Moffatt ;  that  the  woman  was 


i:  ;.! 


[May  7,  f) 


1893.] 


REX  «.  HOULTON. 


95 


'S. 


t  is  no  objection 
tho  testimony  of 


and  riot  at 
q.  Assistant 
Westmeath. 
[r.  Gregortj, 
lie  desire  of 
the  opinion 
eis  legal  and 
en  properly 
t,  what  the 
re  were  two 
he  house  of 
tid  his  wife, 
a.  riot.  The 
ppeared  on 
langerously 
testant  cler- 
she  and  her 
lowing  day 
est,  came  to 
sring  to  the 
church,  and 
woman  was 


taken  out  of  bed  in  consequence  of  the  priest's  desire, 
and  carried  to  an  adjoining  house,  where  she  was  anoint- 
ed by  the  priest.  The  defence  was,  that  the  priest  had 
been  sent  for  by  the  woman  or  her  daughters,  and  that 
she  was  brought  out  of  the  house,  by  her  own  desire. 
Witnesses  were  examined  on  both  sides,  the  indictments 
were  fully  supported,  and  the  outrage  being  very  great, 
the  prisoner  was  sentenced  to  pay  a  fine  of  £40,  and  to 
be  imprisoned  twelve  months.  Jane  Moffatt,  the  wife, 
had  been  tendered  as  a  witness  on  behalf  of  the  prison- 
er, and  rejected;  the  learned  Chairman  advising  the 
bench,  that  in  his  opinion  she  was  incompetent  not  only 
on  the  ground  of  identity  of  interest,  but  on  that  of  pub- 
lic policy,  which  would  not  allow  husband  or  wife  to 
Jbe  examined,  where  the  testimony  of  one  might  even 
tend  to  criminate  the  other.  A  memorial  was  presented 
to  the  Lord  Lieutenant  by  the  prisoner,  complaining  of 
injustice  in  the  trial,  and  particularly  in  the  rejection  of 
the  wife  as  a  witness.  This  memorial,  together  with 
the  report  of  the  trial  by  the  Assistant  Barrister,  were 
laid  before  the  Judges. 

I  It  was  the  unanimous  opinion  of  eleven  Judges  pre- 
fsent  {Fletcher,  J.  being  absent),  that  the  testimony  of 
I  the  wife,  Jane  Moffatt,  ought  to  have  been  received. 
They  held,  that  it  is  no  objection  to  the  evidence  of  a 
wife  that  she  is  brought  to  contradict  the  evidence  of 
her  husband,  and  that  it  would  be  most  injurious  to 
public  justice  if  *such  a  principle  were  estab-  [*26] 


■  % 


-J 


96 


JEBD'S   RESERVED   CAi^ES. 


[Miiy  7, 9 


lislicd ;  that  it  is  iho  constant  practice  on  criminal  trials, 
where  husband  and  wife  have  been  present  at  tlie  com- 
mission of  the  crime,  to  produce  the  wife  as  well  as  the 
husband  in  support  of  the  prosecution ;  and  that  if  she 
could  not  be  examined  for  the  prisoner,  neither  ought 
she  against  him.  That  in  the  case  of  the  King  v.  the 
Inhabitants  of  Cliviger  (a),  which  it  was  supposed  might 
have  influenced  Ihe  decision  of  the  barrister,  the  doc- 
trine laid  down  by  the  Judges  {Ashurst  and  Grose),  is 
disapproved  of  by  the  Court  in  the  case  of  the  King  v. 
tlie  Inlmhitants  of  All  Saints,  Worcester  {b).  It  appeared 
at  first  to  one  of  the  Judges,  {G' Grady,  C.  B.)  that 
there  was  an  objection  to  the  testimony  on  the  ground 
that  the  wife  shall  not  be  examined  against  the  interest 
of  her  husband,  and  that  the  husband  had  an  interest 
in  the  event  of  the  prosecution,  on  account  of  the  54 
Geo.  III.  c.  181  (c),  which  enables  the  Court  to  award 
a  sum  of  money  on  conviction  of  the  assault  to  the  pro- 
secutor, as  compensation  for  loss  of  time,  &c. ;  but  the 
other  Judges  held,  that  this  was  not  such  an  interest  in 
the  husband,  as  should  prevent  the  reception  of  the  evi- 
dence, even  if  the  6th  section  of  the  statute  had  not 
declared  him  to  be  competent,  for  that  prosecutors  enti- 
tled to  a  reward  for  prosecution,  or  to  restitution  of 
stolen  goods,  never  are  rejected  on  the  ground  of  inte- 
rest.   But  this  objection  was  completely  removed  by  the 


■A 


(0)  2  T.  R.  263. 

(6)  1  Phill.  Ev.  82;  2  Siark.  Ev.  401  (cdn.  1833). 

(e)  The  10  G.  4,  c.  34,  s.  33,  is  the  cotresponding  enactment  now  in  force. 


[MBy7,9 

ninal  trials, 
at  the  coni- 
well  as  the 
that  if  she 
sither  ought 
King  v.  the 
posed  might 
er,  the  doc- 
d  Grose),  is 
the  King  v. 
It  appeared 
C.  B.)  that 
L  the  ground 
,  the  interest 
I  an  interest 
at  of  the  54 
art  to  award 
[t  to  the  pro- 
^0. ;  but  the 
m  interest  in 
)n  of  the  evi- 
;ute  had  not 
lecutors  enti- 
•estitution  of 
3und  of  inte- 
oaoved  by  the 


182.1.1 


Ri;X  r.  HOULTON. 


86 


circumstances  of  the  prisoner  being  charged  with  an 
assfiult  on  tlio  wife  as  well  an  the  husband,  and  of  there 
bciiiir  a  second  indictment  for  a  riot. 


The  answer  of  the  Judges  was  returned  by  Busiir, 
C.  J.,  *  to  this  effect,  that  the  Judges  were  unani-  [*27] 
mously  of  opinion  that  the  conviction  of  the  prisoner 
was  illerjal  on  the  single  «xround,  thiit  the  evidence  of 
Ja)ie  Moffatt  ought  not  to  have  been  rejected ;  and  that 
as  it  was  impossible  to  say  whether,  if  she  had  been 
examined,  the  prisoner  might  not  have  been  acquitted 
upon  one  or  more  of  the  charges,  or  if  found  guilty, 
whether  the  sentence  might  not  have  been  different 
from  what  it  was,  they  were  of  opinion  he  ought  to 
receive  a  free  pardon. 

The  prisoner,  together  with  others  convicted  on  the 
8ame  indictment,  was  accordingly  pardoned. 


''f\ 


I  now  in  force. 


^ 


97 


jnnO'S   UESERVED  CASES. 


[November 


IN  tho  Matter  of  a  PRESENTMENT  by  the  Grand  Jury  of 
the  County  of  DONEGAL. 


An  aflidikvit  ujion  "knowledge  and  Ijclicf,"  under  n.  11  of  tho  Peace  ProHcrvation 
A"t.  (54  Lico.  3.  c.  131),  made  by  the  cliiuf  niu^ixtriito  olunc,  ii  inHuflicient. 


The  following  case  was  reserved  for  the  opinion  of 
the  Judges  by  Johnson,  J.  Tho  statute  54  Geo.  III. 
c.  131  {a),  entitled,  "an  Act  for  the  better  execution  of 
•'the  law  in  Ireland,"  enacts,  (s.  1.)  that  the  Lord  Lieu- 
tenant may  proclaim  disturbed  '^listricts,  and  appoint 
one  chief  magistrate  of  police  lin   and  (by  sec.  6.) 

a  clerk  in  aid  of  such  chief  magistrate.  The  11th 
section  directs,  that  the  salaries,  charges,  and  xpenses 
therein  particularly  enumerated,  shall  be  borne  and 
defrayed  by  presentment;  that  the  grand  jury  shall,  at 
each  assizes,  present  all  such  of  the  salaries,  &c.,  as 
vere  not  theretofore  presented,  the  same  being  duly 
vouched  by  affidavit,  and  it  being  testified  by  such 
chief  magistrate  that  the  constables  respectively  have 
faithfully  and  actively  discharged  their  duties. — (Tlie 
[*28]  case  also  *  referred  to  the  statute  55  Geo.  III.  c. 
13,  and  57  Geo.  III.  c.  22,  which  however,  did  not 
appear  to  bear  on  the  question  referred  to  the  Judges). 
At  the  last  assizes  for  the  county  of  Donegal,  an  account 

(a)  This  act  is  still  in  force,  and  is  expressly  referred  to  by  the  6  &  7  W.  4,  c. 
116,8.101, 


[November 


jrnnd  Jury  of 


caco  ProHcrvntion 
ii  iiiHuHicivnt. 


3  opinion  of 
54  Geo.  III. 
execution  of 
3  Lord  Lieu- 
and  appoint 
1  (by  sec.  6.) 
.    The  nth 
and    xpenses 
3  borne  and 
jury  shall,  at 
iries,  &c.,  as 
3  being  duly 
fied  by  such 
ectively  have 
luties.— (The 
.5  Geo.  III.  c. 
ever,  did  not 
the  Judges). 
al,  an  account 

y  the  6  &  7  \V.  4,  c. 


1H23.]    rnE.SENTMKNT  HY  TIIU  GRANO  JURY,    &r.        a^ 

of  iill  expenses  incurred  under  said  Acts  for  the  barony 
of  fiinishowcn  for  seventeen  months,  from  '-id  February, 
l*i'22,  to  30th  Juno,  1*^123,  inclusive,  was  laid  before  the 
grand  jury,  amounting  to  jC3,3i24  2s.  4(1.  one-third  of 
which  is  £  1,108  O.v.  9^/.  and  a  like  account  of  the  barony 
of  Riiphoc,  in  said  county,  for  the  same  period,  amount- 
'  ing  to  the  sum  of  £3,345,  one-third  of  whicli  is  £  1,115. 

The  proper  certificate  as  to  the  conduct  of  the  con- 
stables, signed  by  the  chief  magistrate,  was  annexed  to 
each  account  respectively.  The  verifying  affidavit  was 
made  by  the  chief  magistrate,  and  not  by  the  clerk, 
in  the  following  words:  "William  Wchh,  Esq.  Chief 
•*  Magistrate,  maketh  oath  and  saith,  to  the  best  of  his 
*•  knowledge  and  belief,  that  the  annexed  account  con- 
"  tains  a  just  and  true  statement  of  the  salaries,  allow- 
"ances,  payments,  rents,  taxes,  costs,  charges,  and 
"expenses,  which  have  been  paid  and  incurred,  for 
**  the  maintenance  and  support  of  the  said  police  estab- 
"  lishmcnt  in  the  barony  of  Raphoe,  in  the  county  of 
"Donegal,  for  seventeen  months,  commencing  1st  Feb- 
.  "ruary,  1822,  and  ending  30th  June,  1823,  inclusive." 
frhere  was  a  similar  affidavit  for  the  barony  of  Innish- 
Ipwen.  The  learned  Judge  did  not  think  the  affidavit 
iBufficient  within  the  provisions  of  the  54  Geo.  III.  c. 
131,  and  suspended  fiating  the  presentments. 

All  the  Twelve  Judges  were  of  opinion  that  the 
affidavit  was  insufficient. 


I 

■I 


«i29 


JEBB'S    RESERVED  CASES. 


[February  16 


*  THE  KING  V.  THOMAS  FITZMAUIIICE. 


To  personate  a  deceased  disabled  soldier  was  an  offence  within  tlie  46  G.  III.  c. 
61),  B.  8.  'I'lie  word  "person"  applies  to  llie  dead  us  well  as  to  tlie  living.  Sem- 
hic,  that  an  averment  that  a  man  had  served  in  a  regiment  "of  our  Lord  the 
King,"  is  not  supported  by  evidence  that  ho  had  served  in  the  reign  of  the  laic 
King. 


-i5<i 


Ai  the  Summer  Assizes,  iield  at  Pldlipstown,  in  1823, 
the  prisoner  was  tried  before  O' Grady,  C.  B.,  on  an 
indictment  grounded  on  the  statute  46  Geo.  VI.  c.  69, 
s.  8.  {a),  for  personating  Martin  Kenfiedtj,  a  discharged 
soldier,  entitled  to  a  pension.  The  first  count  stated, 
that  on  the  16th  day  of  March,  1815,  one  Martin  Ken- 
nedy was  entitled  as  an  invalid,  disabled,  and  discharged 
soldier  of  our  Lord  the  King,  to  a  certain  pension,  relief, 
or  allowance,  to  wit,  &c.,  under  and  by  virtue  of  an  Act 
r>f  the  46th  Geo.  III. ;  that  afterwards,  to  wit,  on  the  14th 
of  November,  1816,  at,  &c.,  the  said  Martin  Kennedy 
died;  that  one  Thomas Fitzmaurice,  (the  prisoner,)  well 
knowing  the  premises,  on  the  30th  of  September,  in  the 
3d  year  of  George  the  Fourth,  at,  &c.,  with  force  and 
arms,  &c.,  did  willingly,  knowingly,  and  feloniously, 
personate  and  falsely  and  feloniously  assume  the  name 
and  character  of  another  person,  to  wit,  of  the  said  late 
Martin  Kennedy,  deceased,  then  and  there  supposed  to 


Ijl     !,i 


(o)  This  Act  ia  now  no  longer  in  force;  hut  similar  provisions  are  contained  in 
the  7  (i.  4.  c.  H),  s.  -•}:!,  and  the  2  W.  4.  c.  .'").3,  s.  49. 


I  ii   ■ 


[February  IG 


1824.1 


REX   V.   FITZMAURICE. 


RICE. 


the  46  G.  Ill  c. 

tlie  living.     Sem- 

"of  our  Lord  the 

reign  of  llie  late 


wn,  in  1823, 
.  B.,  on  an 
so.  VL  c.  69, 
a  discharged 
;ount  stated, 
Martin  Ken- 
d  discharged 
ension,  rehef, 
tue  of  an  Act 
t,  on  the  14th 
•tin  Kenned)/ 
risoner,)  well 
ember,  in  the 
ith  force  and 
I  feloniously, 
me  the  name 
the  said  late 
3  supposed  to 

inR  are  contained  in 


be  a  person  entitled  to  said  pension,  relief  and  allow- 
ance; and  tliat  the  said  Thomas  F it zmaurice  i\.\(\.  iXxew 
and  there  so  personate,  &:.c.,  in  order  to  receive  part  of 
the  said  pension,  &c.,  to  which  the  said  Martin  Ken- 
nedy was  supposed  to  be  entitled,  to  wit,  the  sum  of  £4 
IS.f.  Id.,  being  the  amount  of  the  said  pension  for  91 
days,  from  the  25th  of  September  to  the  24th  of  Decem- 
ber, 1822.  The  second  count  stated,  that  the  prisoner 
"on  the  30th  of  September,  in  the  3d  year  of  Geo.  IV., 
at,  &c.,  did  personate  another  person,  to  wit,  one  Martin 
*Kcnnedij,  supposed  to  be  entitled,  as  an  invalid,  [*30] 
disabled  and  discharged  soldier  of  our  said  Lord  the 
King,  to  a  certain  pension,  to  wit,  &c.,  under  the  46 
Geo.  III.;  and  that  the  prisoner  did  so  personate  in 
order  to  receive  part  of  the  said  pension,  to  wit,  &,c. 
The  third  count  differed  from  the  first,  in  omittincj  the 
averment  oi  Martin  Ke  medi/s  death  in  1816,  and  intro- 
ducing an  averment,  '•  that  on  the  30th  of  September, 
"  ]  822,  the  said  Martin  Kennedy  w  s  entitled  to  the  said 
"pension."  The  fourth  count  charged,  that  the  pri- 
soner personated  one  Martin  Kennedy,  supposed  to  be 
;  entitled  by  his  services  (omitting  venue,)  in  the  7th 
^Dragoon  Guards  of  our  Lord  the  King,  and  as  an  inva- 
<  lid,  disabled  and  discharged  soldier,  to  a  certain  pension, 
in  order  to  receive  the  same. 

It  appeared  in  evidence,  that  Martin  Kennedy,  the 
di-iabled  and  discharged  soldier  whom  the  prisoner  jmr- 
sonated,  died  in  181a;  and  the  money  was  paid  to  the 


m 


)  'I 


JEBB'S   RESERVED  CASES. 


[February  16 


prisoner  in  ignorance  of  that  fact,  and  upon  the  suppo- 
sition of  his  being  that  soldier.  The  counsel  for  the 
prisoner  insisted  that  the  word  "person"  in  the  statute, 
even  v^^hen  followed  by  the  words,  "supposed  to  be 
entitled,"  did  not  extend  to  the  case  of  a  deceased  man, 
and  the  learned  Chief  Baron  was  of  that  opinion ;  but 
he  sent  the  facts  to  the  jury,  and  a  verdict  of  guilty 
having  been  returned,  his  Lordship,  at  the  desire  of  the 
counsel  on  both  sides,  reserved  the  question  for  the 
opinion  of  the  twelve  Judges. 


m 


;  tj 


Three  of  the  Judges  {0' Grady,  C.  B.,  Vandekur,  J., 
and  Torrens,  J.,)  were  of  opinion  that  all  the  counts  in 
the  indictment  were  bad.  They  considered  the  aver- 
ment in  the  first  count,  that  Kejvnedy  was  supposed  to 
be  entitled  as  an  invalid  soldier,  &c.,  repugnant  to  the 
[*3l]  previous  *  allegation,  that  he  had  died  in  1816; 
and  as  to  this  count  all  the  Judges  agreed  with  them. 
The  third  count  they,  and  all  the  Judges,  agreed,  was 
not  supported  by  the  evidence,  Ke?inedy  being  dead. 
The  fourth  count,  the  three  Judges  held  not  to  be  sup- 
ported by  the  evidence,  Kennedy^ s  services  having  been 
in  a  regiment  of  our  late  Lord  the  King;  and  there 
being  no  venue  to  this  averment;  and  the  general  opi- 
nion of  the  other  Judges  seemed  to  be  the  same,  but  it 
was  unnecessary  to  decide  this  point,  as  those  other 
Judges  were  of  opinion  that  the  second  count  was  good. 
The  three  Judges  held  that  the  second  count  was  bad, 
as,  even  supposing  Kennedy  to  bo  alive,  he  never  was 


[February  16 

(1  the  suppo- 
insel  for  the 
the  statute, 
posed  to  be 
sceased  man, 
jpinion;  but 
ict  of  guilty 
desire  of  the 
ition  for  the 


v'andeleur,  J., 
the  counts  in 
ed  the  aver- 
3  supposed  to 
Liprnant  to  the 
lied  in  1816; 
1  with  them. 
,  agreed,  was 
being  dead, 
lot  to  be  sup- 
having  been 
g;  and  there 
B  general  opi- 
3  same,  but  it 
those  other 
int  was  good, 
mnt  was  bad, 
lie  never  was 


1824]  REX  c.  FITZMAURICE,  31 

an  invalid  soldier  of  our  Lord  the  now  King,  having 
been  discharged  in  the  time  of  the  late  King. 

But  the  other  Nine  Judges  {Biishe,  C.  J.,  Lord  Nor- 
lury,  C.  J.  C.  Pleas,  Smith,  B.,  M'Cklland,  B.,  Moore, 
J.,  Johnson,  J.,  Jebb,  J.,  Burton,  J.,  and  Pennefather,  B.,) 
held  that  the  second  count  was  supported  by  the  evi- 
dence, for  they  held  that  if  Kennedy  were  alive,  "  inva- 
"lid,  disabled  and  discharged  soldier"  would  be  his 
proper  description,  and  that  this  meant  a  soldier  of  our 
Lord  the  now  King.     With  respect  to  the  facts  proved, 
four  Judges  {0' Grady,  C.  B.,  Moore,  J.,  Johnson,  J.,  and 
Pennefather,  B.,)  held  that  they  did  not  constitute  a 
crime  within  the  statute;  and  that  "person"  meant  a 
w living  person."     Eight  Judges  {Bushe,  C.  J.,  Lord 
Norhury,  C.  J.  C.  Pleas,  Smith,  B.,  M'Cklland,  B.,  Jebb, 
J.,  Burton,  J.,  Vandeleur,  J.,  and  Torrens,  J.,)  held  that 
the  case  of  personating  a  deceased  soldier  was  within 
the  statute.    That  the  Greenwich  Act,  54  Geo.  III.  c. 
93,  must  receive  the  same  construction  as  the  Act  in 
question,  and  by  it  the  cases  of  personating  a  living 
seaman,  and  the  representatives  of  a  deceased  one, 
I*  are  both  provided  for ;  and  to  say  that  the  case  [*32] 
*|of  a  deceased  seaman  was  omitted  would  be  to  suppose 
ijthat  the  legislature  left  unprovided  for,  a  fraud  very 
likely  to  be  practised,  and  which,  in  fact,  is  much  more 
frequently  practised  than  the  fraud  of  personating  a 
living  man.    That  the  term,  "person,"  is  applied  in 
common  speech  to  the  dead  as  well  as  the  living,  and 


33  JEBB'S   RESERVED   CASES.  [February  IG 

in  construing  an  Act  of  Parliament  words  are  to  be 
used  in  their  ordinary  signification. 

The  result  was,  that  although  there  was  a  majority  in 
favour  of  the  conviction  on  each  point,  yet  as  there  was 
such  a  diversity  of  opinion,  and  as  they  were  equally 
divided  on  the  whole,  it  was  agreed  that  the  prisoner 
should  be  recommended. 

The  Chief  Justice,  with  the  concurrence  of  the 
Judges,  wrote  to  Abbott,  C.  J.,  requesting  to  be  inform- 
ed whether  any  such  cases  had  occurred  in  England, 
and  if  there  had,  how  they  had  been  ruled?  Abbott,  C. 
J.,  answered  this  letter,  saying  that  he  was  not  aware 
of  any  decision  upon  this  statute,  46  Geo.  III.  c.  69, 
but  that  two  cases  {Rex  v.  Martin  and  Rex  v.  Cramp, — 
now  reported  in  Russ.  &  Ry.  324-327,)  had  been 
decided  by  the  twelve  Judges  on  a  similar  statute, 
the  Greenwich  Act,  54  Geo.  III.  c.  93,  s.  89 ;  and  his 
Lordship  transmitted  copies  of  those  two  cases,  in 
which  convictions  under  similar  circumstances  were 
held  good. 

See  ante,  The  King  v.  Keefe,  p.  6. 


§'l! 


[February  IG 

is  are  to  be 


1824. 


CRIERS'    FEES. 


33* 


a  majority  in 
as  there  was 
vere  equally 
the  prisoner 


rence  of  the 
to  be  inform- 
in  England, 
?  Abbott,  C. 
as  not  aware 
0.  III.  c.  69, 

V.  Cramp, — 
',)  had  been 
nilar  statute, 

89 ;  and  his 
wo  cases,  in 
stances  were 


*  IN  the  Matter  of  CRIERS'  FEES. 


Clerks  of  the  crown  and  criers  are  not  prohibited  by  statute  from  tailing  any  fees, 
■  except  those  which  had  boon  formerly  paid  by  presentment,  and  are  now  com- 
%    muted  for  salary.    Schedule  of  fees  to  which  the  crier  is  entitled. 

The  following  case  was  submitted  by  Torrens,  3.,  for 
the  consideration  of  the  Judges : 

^  "  By  the  Act  of  the  4th  Geo.  IV.  c.  43  {a)  entitled, 
|An  Act  to  regulate  the  amount  of  presentments  by 
^rand  juries,  for  the  payment  of  public  officers  of  the 
.^everal  counties  in  Ireland,'  it  is  by  the  first  section  (b) 
enacted,  '  That  all  the  Clerks  of  the  Crown,  Clerks  of 

*  the  Peace,  Secretaries  to  Grand  Juries,  Sheriffs,  Medi'- 
*cal  Officers  of  Prisons,  .  ad  all  other  officers  specified 
*jin  the  table  to  the  said  Act  annexed,  for  the  payment 
for  remuneration  of  whose  duties,  salaries,  or  expenses, 
|any  presentment  is  required  to  be  made  by  Grand 

♦  Juries  under  any  Acts  in  force  at  the  time  of  the  pas- 
Ising  of  said  Act,  shall  from  thenceforth  be  paid  and 

I 

t(a)  Although  the  provisions  of  this  Act  have  been  superseded  by  the  6  &  7  W. 
c.  116,  yet  the  principle  established  by  this  case  applies  equally  well  to  the  latter 
4ct ;  and  this  case  was  referred  :o  by  the  Judges  in  1837  and  1839,  as  the  basis  of 
their  decisions  in  those  years,  in  the  cases  of  the  Fermanaprh  and  Clare  Road 
Traverses  {vide  post).  The  schedule  of  fees,  as  settled  on  this  occasion,  remains 
unaltered,  except  that  the  traverse  mentioned  in  the  first  item,  means  only  a  tra- 
tetaefor  damages. 

•  (i)  Vide  g.  110,  of  6  &,  7  W.  4,  c.  116. 


im 


.Ji 


33 


JEDB'S   KESERVED   CASES. 


[Junuary  3G 


*  remunerated  for  all  such  duties,  services,  and  expenses, 

*  by  annual  salaries  only,  payable  half-yearly,  according 
'  to  the  table  to  said  Act  annexed  ;  and  such  sums,  so 
'  presented,  not  exceeding  the  annual  sum  set  forth  in 
'  the  said  table,  shall  be  in  full  and  complete  satisfaction 
'  and  remuneration  for  all  duties  and  services  to  be  done 
'  and  performed,  and  for  all  expenses  to  be  incurred  by 

*  such  officers,  for  which  any  presentment  may  lawfully 

*  be  made  by  any  Grand  Jury.'  The  persons  who  have 
[*34]  heretofore  acted  as  criers  in  the  *  respective  courts 
on  the  circuit,  are  not  mentioned  by  name  in  the  fore- 
going section ;  but  in  the  table  of  classification  of  coun- 
ties and  salaries  of  public  officers  annexed  to  this  Act, 
such  persons  are  denominated  "Judges'  Criers."  This 
Act  only  received  the  royal  assent  immediately  previous 
to  the  last  summer  circuit  (viz.  on  the  27th  of  June, 
1823),  and  a  difference  of  construction  having  been 
given  to  it  on  the  different  circuits  by  the  respective 
Judges,  it  appears  desirable  that  your  Lordships'  opi- 
nion should  be  had  on  the  proper  construction  and 
regulations  to  be  now  adopted  with  respect  to  those 
officers,  so  that  an  uniformity  of  construction  may  here- 
after prevail.  The  following  points  are  therefore  sub- 
mitted tc  your  Lordships'  consideration :  1st,  Whether 
any  other  fee  or  gratuity  whatsoever  is  now  of  right 
payable  to,  or  demandable  by,  the  Judges'  Criers,  save 
the  salaries  specified  in  the  table  of  classification  ?  The 
fees  and  gratuities  hitherto  paid,  as  far  as  they  have 
come  under  my  observation,  consist,  first,  of  fees  pay- 


^^ 


[January  2G 

ad  expenses, 
y,  according 
ich  sums,  so 
I  set  forth  in 
e  satisfaction 
es  to  be  done 
i  incurred  by 
may  lawfully 
3ns  who  have 
pective  courts 
J  in  the  fore- 
ition  of  coun- 
d  to  this  Act, 
riers."    This 
itely  previous 
27th  of  June, 
having  been 
the  respective 
ordships'  opi- 
struction  and 
spect  to  those 
ion  may  here- 
therefore  sub- 
1st,  Whether 
now  of  right 
s'  Criers,  save 
fication  ?    The 
•  as  they  have 
t,  of  fees  pay- 


1824.] 


CRIERS'    FEES. 


34 


able  to  the  crier  in  the  civil  court,  upon  trials  of  records 
and  verdicts  returned,  and  (I  believe)  appeals  from 
assistant  barristers'  and  manor  courts ;  secondly,  gratui- 
ties paid  by  the  sheriffs,  to  induce  the  Judges'  servants 
to  act  as  criers ;  thirdly,  fees  on  burning  petitions  in  the 
crown  court.  There  may  be  others  which  your  Lord- 
ships' experience  may  suggest. 


\  "  2dly.  Whether  the  respective  criers  of  each  Judge 
be  not  entitled,  under  the  words  "  Judges'  Criers,"  to  a 
half-yearly  salary,  under  the  table  of  classification  1  It 
is  apprehended  that  the  arrangement  of  the  Judges  on 
4he  circuit  presiding  at  the  same  time  in  different  courts, 
was  so  settled  by  themselves  for  their  own  and  the  pub- 
lic convenience,  and  is  not  regulated  by  any  legislative 
Miactment,  *and  it  may,  and  frequently  does  [*35] 
Jiappen,  that  the  Judge,  whose  trrn  it  is  to  preside  in 
ihe  civil  court,  is  called  upon  to  assist  his  colleague  in 
delivering  the  gaol,  taking  presentments,  &c.  &c. 

"  3dly.  Whether  it  was  not  the  intention  of  the  legis- 
.Jature,  and  would  not  be  now  desirable  (if  the  statute 
referred  to  will  bear  the  construction  suggested),  that 
Ihe  Judges'  Criers  (now  so  called  for  the  first  time,) 
Should  be  put  on  the  same  footing  with  all  other  public 
officers,  and  be  paid  the  specified  salary  only;  and  that 
all  fees,  or  gratuities  in  the  nature  of  fees,  should  be  pro- 
hibited from  being  taken  by  them  ? 


,f 


35 


JEBB'S   RESERVED  CASES. 


[January  36 


"  4thly.    Whether,  since  the  4  Geo.  IV.,  the  sheriff 
be  still  bound  to  provide  a  crier  for  the  court?" 

The  Judges  held,  on  a  principle  common  to  both 
clerks  of  the  crown  and  criers,  that  the  salaries  provided 
by  the  4  G.  IV.  c.  43,  were  only  in  lieu  of  fees  formerly 
paid  by  presentment,  and  therefore  did  not  bar  a  claim 
to  any  lawful  fees  of  another  description.  With  respect 
to  the  criers,  they  went  further,  and  established  a  list  of 
the  fees  which  they  miglil  lawfully  claim  over  and 
above  their  salaries  («).  They  also  held,  that  certain 
[*36]  other  gratuities  *  theretofore  paid  to  the  criers  by 
certain  persons  were  not  demandable  of  right,  but  mere 
courtesies,  which  it  was  optional  with  the  party  to  pay 
or  not;  such  as  money  customarily  given  by  barristers 
and  attorneys  to  the  crier  of  each  court,  in  consequence 
of  his  attending  to  their  accommodation  therein,  and  a 
sum  given  by  the  sub-sheriff  to  the  crier,  for  assisting 
him  in  preserving  order  in  the  courts. 


(a)  These  are  as  follows:  In  the  crown  court — on  the  trial  of  any  traverse  to  a 
grand  jury  presentment,  5a, 

On  the  liearing  of  any  petition  for  compensation  for  malicious  injury,  by  burning 
or  otiicrwisc,  Ss. 

In  the  civil  court — for  each  record  tried  by  a  special  or  common  jury,  10s.  6d. 

On  each  recognizance,  or  bail-piece,  acknowledged  before  the  judge,  58. 

On  each  aflidavit  sworn  in  court.  Is. 

See  the  cases  (post)  of  the  Fermanagh  Road  Traverse,  in  1637,  and  the  Clure 
Road  Traverse,  in  18.39. 


^ 


[January  26 

,  the  sheriff 

ft?" 


1824.1 


REX   V.  CAHILL. 


non  to  both 
ies  provided 
ises  formerly 
t  bar  a  claim 
With  respect 
shed  a  list  of 
,m  over  and 

that  certain 
the  criers  by 
rht,  but  mere 

party  to  pay 
by  barristers 

consequence 
h(irein,  and  a 
,  for  assisting 


of  any  traverse  to  a 

18  injury,  by  burning 

mon  jury,  10s.  Gd. 
le  judge,  5«. 

1837,  and  tlie  Clare 


THE  KING  V.  CAHILL  and  Others. 


IAo  indictment  for  burglary  in  a  gatc-housc,  stating  it  to  bo  the  diBtUing-houM  of 

tiie  gnle-kcfper,  is  bad. 
An  indictment  under  the  Wliiteboy  Act  for  nn  injury  to  a  gnte-house,  stating  it  to 
be  tiic  "  dweiling-iiousc  and  habitation"  of  the  gatc-kccpcr,  is  suilicicnt. 


The  prisoners  w^ere  convicted  before  Bushe,  C.  J.,  at  the 
Spring  Assizes  for  the  County  of  Kilkenny,  in  1824,  upon 
two  indictments.  The  first  indictment  was  for  burglary, 
viz.  for  "feloniously  and  burglariously  breaking  and 
^'entering  the  dwelling-house  of  one  William  Spellan, 
^'  at  eleven  o'clock  at  night,  with  intent  to  kill  the  said 
*♦  William  Spellan."  The  second  indictment  was  under 
the  Whiteboy  Act  («),  viz.  that  the  prisoners,  between 
sunset  and  sunrise,  did  "assault  and  injure  the  dwelling- 
**  house  and  habitation  of  William  Spellan,  by  pulling 
"  the  slates  off  the  roof  of  the  said  dwelling-house  and 
- "  habitation."  There  was  a  second  count  in  the  latter 
indictment,  omitting  the  words,  "by  pulling  the  slates 
.off,"  &c. 

Both  indictments  were  sufficiently  supported  by  the 
evidence;  but  it  appeared  that  William  Spellan  was  the 
gate-keeper  and  wood-ranger  of  Sir  Wheeler  Cuffe,  and 
as  such  lived  in  his  gate-house,  which  was  on  the  side 


r  ■ 


(n)  IS,  16Gco.  III.  c.  21,s.  4. 


87 


JRDB'S   RESEUVED  CASES. 


[May  \i 


r*37]  of  the  *  high  road,  and  nearly  half  a  mile  from 
Sir  Wheeler's  house ;  that  no  one  lived  in  the  gate-house 
except  Spellan  and  his  family,  and  that  Sir  Wheeler 
Ciiffe  paid  him  for  his  services  by  wages  of  £  10  a  year, 
and  by  an  allowance  of  firing  and  milk,  and  by  permit- 
ting him  to  live  in  the  gate-house,  of  which  he  had  no 
lease,  and  for  which  he  paid  no  rent.  Under  these  cir- 
cumstances, counsel  for  the  prisoner  insisted  that  the 
gate-house  was  not  the  drvelling-Jiouse  of  Spellan,  so  as 
to  support  the  indictment.  The  learned  Chief  Justice 
reserved  this  question  for  the  twelve  Judges,  and  sent 
the  case  to  the  jury,  who  found  the  prisoners  guilty. 

Ten  Judges  {ahsentihus  Smith,  B.,  and  Johnson,  J.,) 
ruled  that  the  indictment  for  burglary  was  not  sustained, 
as  for  the  purposes  of  burglary  the  house  was  the  house 
of  Sir  Wheeler  Cuffe;  on  the  authority  of  the  case  of 
Rex  V.  Moore  (a),  and  the  authorities  there  cited.    But 


(a)  REX  r.  LAURENCE  MOORE. 
October,  1820. 
The  prisoner  was  indicted  at  the  October  Sessions  at  Grcen.street,  before  Daly, 
J.  and  Smith,  B.,  for  burglary,  on  an  indictment  containing  two  counts.  The  first 
count  laid  the  burglary  in  the  dwclling-housc  of  George  I'rescott,  the  second  in  the 
dwelling-house  of  George  Vetey.  The  prisoner  was  acquitted  on  the  first  count, 
and  found  guilty  on  the  second ;  but  the  Judges,  doubting  the  propriety  of  the  con- 
viction, reserved  the  case  for  the  opinion  of  the  Judges.  The  house  was  an  orna- 
mental cottage  in  Mr.  Vetey'a  demesne,  to  which  Mr.  Vesey  and  his  family  used 
to  resort,  and  in  which  they  occasionally  dined,  but  never  slept.  G.  Prescott  was 
Mr.  Vesey^B  servant,  having  the  care  of  the  cottage,  and  he  and  his  family  inha- 
bited part  of  it,  but  paid  no  rent,  and  he  was  removable  at  Mr.  Veaet/i  pleasure. 
Upon  the  authority  of  Rex  v.  Stock  and  Edwards,  2  Taunt  339,  and  3  Leaoli 
1015,  and  on  consideration  of  all  the  cases,  the  Judges  held  the  conviction  to  be 
proper. 


^ 


[May  IS 

f  a  mile  from 
le  gate-house 
Sir  Wheeler 
f  £  10  a  year, 
id  by  permit- 
zh  he  had  no 
der  these  cir- 
sted  that  the 
Spellan,  so  as 
Chief  Justice 
res,  and  sent 
ers  guilty. 

Johnson,  J,) 
not  sustained, 
was  the  house 
if  the  case  of 
•e  cited.    But 


1824.) 


REX  t).  CAIIILL. 


ST 


i.street,  before  Daly, 
70  counts.  The  first 
ott,  the  second  in  the 
i  on  the  first  count, 
propriety  of  the  con. 
I  house  was  an  orna- 
f  and  his  family  used 
pt.  G.  Prescott  was 
and  his  family  inha- 
Mr.  Veseifa  pleasure, 
at  339,  and  2  Leanli 
the  conviction  to  be 


they  were  also  of  opinion  that  the  conviction  on  the 
second  indictment  was  good.  The  words  of  the  statute 
are,  "if  any  person  shall,  maliciously  assault  or  injure 
/'  the  habitation,  property,  goods,"  &c. ;  which  general 
jword,  "habitation,"  *  shows  that  it  was  intended  [*3S] 
^hat  any  |)lace  in  which  any  person  inhabited  was  to  be 
protected;  and  that  the  rule  in  arson,  by  which  the 
offence  is  coiisidered  to  be  committed  against  the  actual 
possessor,  by  whatever  title  he  may  hold  the  possession, 
is  the  rule  which  should  govern  cases  under  this  statute. 
The  indictment  in  this  case  had  introduced  the  word 
."dwelling-house,"  which  is  not  in  the  statute;  but  this 
did  not  affect  the  case,  as  the  word  "habitation"  was 
ftlso  in  it. 


To  the  same  effect,  Rex  v.  Wilsnn,  Russ.  &  Ry.  115;  where  the  person  in  whose 

iwiduncc  the  burglary  was  coirimiltcd  occupied  pari  of  a  house  belonging  to  a 

ODmj)any,  (the  company  meeting  for  business  in  a  room  of  that  part,)  as  a  provi- 

lion  for  scvcrul  years,  and  paying  no  rent:     Held  that  it  could  not  be  described  at) 

kis  d.  h.    Also  Rex  v.  Slock,  id.  lt*5,  (referred  to  in  Rex  v.  Moore,  supra,  n.)  a  case 

Qoiisidvrubly  siifiilur  to  the  preceding:    Held  that  it  properly  laid  as  the  d.  h.  of 

Ae  owners,  though  none  of  them,  in  fact,  resided  in  the  house.    In  these  two  cases 

Ihe  occu|)aiits  were  regarded  as  servants.    Secus,  however,  if  the  person  though 

Bving  in  the  house,  though  rent  free,  be  not  a  servant,  as  a  tenant  at  will,  Rex  v.  • 

Collett  et  tiL,  id.  498;  or,  if  being  a  servant  and  occupying  the  whole  house,  he 

.pay  rent,  though  very  inadequate,  and  tliough  he  have  the  house  by  reason  of  his 

|pervice,  Rex  v.  Jarvis  et  <il,  1  Moo.  7;  or,  if  having  exclusive  possession,  though  he 

ry  no  rent,  provided  tlic  house  be  no  part  of  any  premises  of  his  master,  and 
the  master  himself  be  but  a  mere  lessee ;  as  a  gate  keeper  for  a  lessee  of  tolls 
l^rmcd  out  by  the  road  comj)any,  Rex  v,  Camfidd,  1  Jloo.  42;  or,  if  the  occupant 
(liough  not  paying,  strictly,  rent,  but  receiving  the  house  as  a  provision,  live  tiiere 
l^incipally,  if  not  exclusively  for  his  own  benefit;  as  colliers  or  workmen  in  cot- 
tages near  their  work,  Rex  v.  Jobling,  Russ.  &  Ry.  525:  in  all  which  four  cases 
the  burglary  was  laid  as  in  the  d.  h.  of  the  occupant,  and  sustained.  See  Roscoe's 
Crim.  Evid.  321,  Sharswood's  ed.  Phil.  1840.  Also  2  Russell  on  Cr.  20,  same  ed. 
Phil.  1841. 


^ 


38 


Ji:HU'8    KESKRVED  CASES. 


[Jtiiio  311 


THE  KING  V.  JAMES  WALSH. 


To  nt'gativp  Immlwritin^,  it  is  pufficient  evidciico  if  tlio  siiiipnKod  writer  cnn  iitntc 
IiIh  pimitivo  kiuiwlc(l|;c,/i'ftm  eircumalancea,  tliiit  tliu  writing;  cunnot  be  Iuh,  al- 
tlioiiirli  III!  ulsu  HtaU'N  tliiit  lie  cnnniit,  even  upon  liis  bcliuf,  on  u  mere  inHpoction 
of  the  writing,  any  wlictiicr  it  in  liin  or  nut. 


The  prisoner  was  tried  at  the  Spring  Assizes  for  the 
City  of  Waterford,  in  1824,  before  Smith,  B.,  upon  an 
indictment  for  obtaining  money  under  false  pretences. 
The  pretences  were  stated  to  be,  the  tendering  for  pay- 
ment certain  paper  writings,  purporting  to  be  trades- 
mens'  bills  for  contract  work  done,  with  receipts  at  foot 
for  the  amount  signed  by  the  prisoner,  and  the  whole 
countersigned  by  Alderman  Hackett,  one  of  the  comp- 
troi'ers  of  certain  works  in  which  the  Corporation  of 
Waterford  had  been  engaged;  the  intent  being  lo 
defraud  the  said  Corporation.  By  the  regulations  of 
the  Corporation,  this  counter-signature  by  Alderman 
Hackett  was  to  be  the  Chamberlain's  authority  for  pay- 
ing over  the  money  specified  in  the  various  bills. 


Alderman  Hackett  being  examined,  stated  that  the 
several  signatures  were  not  his  handwriting.  On  his 
cross-examination  he  stated,  that  if  he  wanted  any  thing 
to  corroborate  his  opinion,  the  contents  of  one  of  the 
[*39]  papers  *  (which  he  specified,)  would  lead  him 
to  deny  his  signature;  and  his  knowledge  that  the  pri- 


^%l 

Wn 


[Juno  30 


1831, 


REX  r,  WALSH. 


Hcd  writer  onn  ntntc 
If  cannot  be  Iiih,  bI- 
n  u  mere  iuHpcctiun 


ssizes  for  the 
J,  B.,  upon  an 
ilse  pretences, 
ering  for  pay- 
to  be  trades- 
eceipts  at  foot 
and  the  whole 
of  the  comp- 
Dorporation  of 
tent  being  to 
regulations  of 
by  Alderman 
liority  for  pay- 
us  bills. 


tated  that  the 
iting.  On  his 
nted  any  thing 
of  one  of  the 
ould  lead  him 
je  that  the  pri- 


■oner  did  not  work  in  that  year  confirmed  his  opinion. 
Tiiat  he  certainly  would  not  decide  on  the  naked  signa- 
ture alone,  especially  as  he  had  at  that  time,  and  at  the 
lime  of  his  examination,  the  gout  in  his  hand.  He  was 
kcre  shown  the  naked  signature  to  some  documents. 
pe  would  not  swear  that  it  was,  or  was  not,  his  hand- 
writing. These  papers,  when  opened,  proved  to  be  the 
iame  to  which  his  direct  testimony  had  applied.  An 
order  for  payment  to  one  M.  was  now  produced;  witness 
believed  this  to  be  his  handwriting,  because  he  knew 
that  M.  had  done  the  work.  Witness  was  positive  that 
the  prisoner  did  not  work  in  18'23  (the  year  in  which 
the  receipts  purported  to  bear  date).  At  a  subsequent 
stage  of  the  case,  this  witness  was  recalled,  and  ex- 
amined by  the  Court;  on  this  occasion  he  stated,  that 
he  could  not,  even  upon  his  belief,  on  a  mere  inspection 
of  the  signature,  without  reference  to  the  contents  of 
the  paper,  say  whether  the  signature  was  his  hand- 
Writing  or  not;  without  looking  at  the  contents,  he  could 
not  take  upon  himself  to  believe  one  way  or  another. 

I  The  learned  Baron  reserved  for  the  opinion  of  the 
/elve  Judges,  the  question  whether  Ilackett  had  given 
ly  legal  evidence  that  the  signatures  were  not  his 

landwriting  (a) ;  but  sent  the  case  to  the  jury,  who 

fcund  the  prisoner  guilty. 


(a)  Two  other  questions  were   reserved   on  points  with  respect  to  wliich  llic 
■tntutcs  9  G.  4  c.  55,  s.  46,  &  !)  G.  4.  c.  ."JS,  s.  2,  have  since  rcmovrd  n\\  (ilfficulty, 
tiz.  whether  in  this  ease  the  fraud  was  merged  in  a  felony.    The  Judges  held  that 
7 


*40 


JEBB'S   RESERVED   CASES. 


[February  16 


*  Eleven  Judges  [ahsente  Johnson,  J.,)  were  unani- 
mously of  opinion  that  the  conviction  was  right,  and  that 
Hacketfs  evidence  as  to  his  handwriting  was  sufficient; 
his  positive  knowledge  from  circuiiD stances  that  it  was 
not  his  handwriting,  being  a  higher  decree  of  evidence 
than  any  belief  formed  from  knowledge  of  handwriting, 
even  by  the  writer  himself 


it  was  not,  as  the  documents  in  question  '/ere  not  orders  for  tlic  payment  of  money 
under  the  statute  upon  that  subject ; —  ind  secondly,  whether  Alderman  Ilackcit 
was  a  competent  witness ;  the  Judges  held  that  lie  was,  inasmuch  as  he  was  not 
liable  to  be  sued  upon  the  documents  in  question. 


IN  the  Matter  of  JAMES  DELANY'S  Traverse  of  a   Road 
Presentment  on  the  Merits. 


The  passing  ofa  presentment  is  prim«/(ic  je  evidence  of  the  legality  of  proceedings 
under  the  59  G,  3,  c.  84,  on  the  part  ofa  person  who  has  obtained  a  road  present- 
ment. 


The  following  question  was  reserved  by  Smith,  B., 
from  the  Maryborough  Summer  Assizes,  in  1S24  :— 
"  Whether,  on  the  trial  of  a  traverse  upon  the  merits  of 
"  a  road  presentment,  the  person  who  has  obtained  the 
"  presentment  is  bound  to  prove  the  several  matters 
"  required  by  the  statute  59  Geo.  III.  c.  84,  previous  to 
"  the  approbation  of  the  magistrates  of  such  presentment 
**  at  the  special  sessions  ?" 


Vf. 

I  i 


[February  16 

were  unani- 
rht,  and  that 
IS  sufficient; 
s  that  it  was 
01  evidence 
landwritiiig, 


payment  of  money 
Alderman  Hnckelt 
[ic)i  as  he  was  not 


1820.1 


PROSECUTORS'   EXPENSES. 


40 


50  of  a   Road 


Subject  to  the  above,  both  parties  went  into  evidence 
^as  to  the  utihty  or  inutility  of  the  road.     There  was  a 
verdict  for  the  presentment. 

The  twelve  Judges  unanimously  ruled,  that  the 
4  passing  of  the  presentment  was  prima  facie  evidence  of 
its  legality,  and  threw  the  otms  of  objection  on  the  tra- 
verser (a). 

(a)  Fide  6  &  7  W.  4,  c.  116,  s.  55. 


•IN  the  Matter  of  PROSECUTORS'  EXPENSES,  as  [*41] 
g  to  Fees  payable  to  the  Clerk  of  the  Crown. 


ility  of  proceedings 
ined  a  road  present- 


er Smith,  B., 
,  in  1824:— 
the  merits  of 
obtained  the 
/eral  matters 
t,  previous  to 
I  presentment 


.|The  clerk  of  the  crown  is  not  of  right  entitled  to  the  fees  of  2g.  2d.  and  Gs.  8d.  'or 
searches  in  thy  crown  office,  and  copies  of  informations,  as  part  of  the  experses 
of  prosecution  under  a  Judjo-e's  order,  unless  in  cases  where  the  copies  were  actu- 
ally furnislu'd,  and  were  necessary. 

^^he  Judge  has  a  dmrretion  in  ordering  the  expenses  of  prosecutors  to  be  paid  to 

•M     them. 

fiTlie  clerk  of  the  crown  i*  bound  to  proou- 


court,  when  ordered,  wJtiMut  any  fee. 


the  informations  in  his  office  to  the 


pusHE,  C.  T.,  referrfid  ttwi  following  case  to  the  Judges, 
for  consideralion : 

"  Having  found  a  diflferencf^  of  practice  prevailing  on 
the  Leinster  circuit,  as  to  the  manner  of  preparing 


in 


.;! 


,:| 


1: 

ffi 

■1  - 

1  '  <' 

1  In 

f^ 

ni 

If,  -  • 

■H 

1  't'l 

I-' 

ij^H 

Mm 

•o 


JEBB'S    RESERVED   CASES. 


[April  27 


Judges'  orders  for  the  expenses  of  prosecutors  and  wit- 
nesses, under  the  55  Geo.  III.  c.  91  (a),  I  have  respited 
some  of  those  orders,  for  the  purpose  of  taking  the  opi- 
nion of  the  Judges  on  the  legality  of  some  charges  con- 
tained in  them.  In  the  counties  of  Wicklow,  Wexford, 
and  Kilkenny,  the  clerk  of  the  crown  charges,  as  part 
of  the  expenses  of  the  prosecution  in  such  cases,  a  fee 
of  2s.  2f/.  on  any  search  in  the  crown  office,  65.  86/.  for 
the  copy  of  each  indictment,  and  65.  8^/.  for  the  copy  of 
each  information.  In  the  counties  of  Waterford  and 
Ti])pe?'ari/  no  charges  of  any  kind  are  made  by  the  clerk 
of  the  crown,  wlien  the  expenses  of  prosecutors  are 
ordered  by  the  court  under  the  statute.  They  do  charge 
those  fees  against  the  Crowfi  Solicitor.  The  clerk  of 
the  crown  for  Wicldow,  Wexford,  and  Kilhenny,  alleges, 
that  the  prosecutions  cannot  be  carried  on  with  effect 
without  such  copies ;  that  he  is  not  bound  to  furnish 
[*42]  them,  or  give  an  inspection  of  the  *  originals,  gra- 
tis; that  his  fee  is  under  the  49  Geo.  III.  c.  101,  a  lawful 
fee,  always  paid  to  him  by  prosecutors  who  prosecute 
at  their  own  expense,  and  always  charged  by  him 
against  the  Crown  Solicitor,  and  paid  by  that  officer  to 
him  in  prosecutions  carried  on  by  him ;  and  that  not 
being  a  fee  that  was  ever  at  any  time  paid  by  present- 


(a)  Tlic  provisiois  of  tliis  act  liavo  liocn  extended  by  tlie  I  W.  4,  c.  57,  to  oil 
cafci's  of  iirriKocutiiin,  by  the  crown  otliccrs  and  otherwise ;  and  the  provisions  ol 
both  have  l)efn  adopted  by  the  ti  &,  7  W.  4,  c.  116,  s.  10.').  It  would  seem  that  Ik 
6  &,  7  W.  4,  c.  IJIi,  s.  110,  did  not  apply  to  this  case,  the  fees  oi  question  ntt 
havincf  been  the  subject  matter  of  presentment,  und  tliereforc  not  couimuted  for 
salary. — See  the  case  of  Critra'  fees,  ante  p.  33. 


J 


[April  27 

tors  and  wit- 
lave  respited 
king  the  opi- 
charges  con- 
^w,  Wexford, 
arges,  as  part 
1  cases,  a  fee 
ce,  6s.  86/.  for 
)r  the  copy  of 
■aterford  and 
3  by  the  clerk 
osecutors  are 
ley  do  charge 

The  clerk  of 
;enny,  alleges, 
in  with  effect 
id  to  furnish 
originals,  gra- 
.  101,  a  lawful 
v\\o  prosecute 
rged  by  him 
that  officer  to 

and  that  not 
id  by  present- 


l  W.  4,  c.  57,  to  all 
ind  the  provisions  ol 
.  would  si'ciii  that  Ik 
1  fi'LS  .u  question  iitl 
ro  not  commuted  fot 


1825.] 


rUOSECUTORS'    EXPENSES. 


49 


ment,  it  is  not  amongst  those  which  have  been  com- 
muted for  salary  by  the  4  Geo.  IV.  c.  43." 

It  was  the  opinion  of  eleven  Judges  present  {Smith, 
^.,  being  absent),  that  the  fees  in  question  should  not 
;|be  allowed  by  the  Judges,  except  in  cases  where  the 
■copies  were  actually  furnished  and  were  necessary ; 
•and  Uiikt  the  Judge  has  a  discretion  in  ordering  the  ex- 
(penses  of  prosecution.  They  also  held,  that  the  clerk 
pf  the  crown  is  bound  to  produce  the  informations  in 
fiis  office  to  the  court,  when  ordered,  without  any  fee. 


IN  tlic  Matter  of  PROSECUTORS'  EXPENSES. 


Wliore  the  bills  are  ignored,  no  order  can  be  made  for  a  prosecutor's  expenses 
undi  r  55  G.  3,  c.  1)1,  s.  1. 


^T  the  Spring  *  ^sizes  for  the  County  of  Kilkenny  in 
LS25,  claims  havmg  been  made  for  orders  for  the  ex- 
3nses  of  prosecutors,  under  the  55  Geo.  III.  c.  91,  s. 
|1  {n),  Bushe,  C.  J.,  reserved  several  (pestions  for  the 
%opuiion  of  the  Judges,  and  amongst  them  the  following: 

Is  the  party,  who  has  retainted  ;i  counsi4,  or  solicitor, 

(n)  Sec  the  note  to  the  preceding  case. 


f:i 


49 


JEUB'S    RESERVED   CASES. 


[April  27 


or  both,  or  has  gone  to  the  expense  of  taking  out  copies 
of  the  informations  from  the  crown  office,  entitled  to  an 
[*-43]  order  *  for  his  expenses,  under  the  55  Geo.  III. 
c.  91,  s.  1,  if  the  bill  of  indictment,  or  all  the  bills  of 
indictment,  if  more  than  one,  shall  have  been  ignored 
by  the  grand  jury? 

Eleven  Judges  {Smith,  B.,  being  absent)  unani- 
mously agreed,  that  the  party  is  not  so  entitled;  the 
wording  of  the  statute  being  express,  and  extending 
only  to  cases  of  conviction  or  acquittal  (a). 


(o)  The  other  questions  reserved  were,  wlietlicr  a  party  who  employs  counsel  or 
an  attorney,  knowing  that  the  crown-Holicitor  would  act,  was  entitled  to  an  order 
for  his  expenses;  and  whetiier  he  was  so  entitled,  where  he  did  not  Icnow  it.  Tiic 
first  question  was  answered  in  the  negative;  and  the  second,  by  holding  that  it  was 
discretionary.  But  the  doubt  upon  this  subject  has  been  removed  by  the  1  W.  t. 
c.  .57,  whicli  <'xii.:ndH  tlic  provisions  of  the  .5.')  G.  3,  c.  91,  to  cases  of  prosecutions 
by  the  law  officers  of  the  crown;  and  by  the  6&  7  W.  4.  c.  116,  s.  10.'). 


m 


m 


[April  27 

g  out  copies 
ntitled  to  an 
55  Geo.  III. 
the  bills  of 
)een  ignored 


sent)  unani- 
entitled;  the 
d  extending 


employs  couneel  ot 
intitlcd  to  an  order 
not  know  it.  Tiic 
holding  that  it  was 
red  by  the  1  W.  4. 
8U8  of  prosecutions 
,  s.  10.'). 


1835.] 


MEDICAL  OFFICER,  WICKLOVV. 


43 


IN   'no  Matter  of  a  Presentment  for  a  MEDICAL  OFFICER 

of  a  prison  by  the  Grand  Jury  of  the  Co.  of  WICKLOW. 

'f 

JlVhcrc  there  was  but  one  medical  officer  to  a  county  prison,  the  grand  jury  were 
bound  to  present  for  him  the  entire  sum  mentioned  in  the  schedule  to  the  4  G.  4, 
c.  43. 

In  consequence  of  a  presentment  offered  to  Bushe,  C.  J., 
at  the  Spring  Assizes  for  the  County  of  WicMorv  in 
1825,  his  Lordship  reserved  for  the  opinion  of  the 
Judges  the  following  question : 

^  If  there  be  but  one  medical  officer  to  a  prison  in  a 
county  at  large  (for  instance  a  surgeon,)  is  he  entitled 
to  a  presentment  for  the  whole  salary  mentioned  in  the 
schedule  to  the  4  Geo.  IV.  c.  43  ?  (b)  Or  are  the  grand 
jury  at  liberty  to  present  a  part  of  that  j.um  as  his  salary  ? 

*It  was  held  by  eleven  Judges  {Smith,  B.,  [*44] 
»|>eing  absent),  that  the  medical  officer  was  entitled  to 
presentment  for  the  whole  salary,  and  that  the  Grand 
ury  were  bound  to  present  the  entire  (a). 


(ft)  The  schedule  to  the  6  &  7  W.  4,  c.  116,  is  nearly  similar. 
(a)  See  6  &  7  W.  4,  c.  116,  s.  110,  which  authorizes  a  diminution  where  tliere 
has  been  a  neglect  of  duty. 


1 1 


■"11 


Pi 


I 


44 


JEIJB'S   RESERVED  CASES. 


[April  97 


IN  the  Matter  of  Presentments  for  MEDICAL  OFFICERS  of 
BridcwcllL^  in  the  Co.  of  VVICKLOVV. 


A  medical  f)fliccr  cannot  be  lawfully  nppoint(^d  by  a  county  grand  jury  for  a  bride, 
well.  The  amount  of  a  bill  for  niedicint's  for  prisoners  in  a  bridewell  may  be 
presented,  if  furnished  by  tlie  upotliecury  of  the  county  gnol,  but  not  otherwise. 


In  consequence  of  presentments  offered  to  Bushe,  C.  J., 
at  the  Spring  Assizes  for  the  County  of  WicMorv,  in 
1825,  and  the  Summer  Assizes  for  the  same  county  in 
1824,  relating  to  the  District  Bridewell  of  Baltinglass, 
in  that  county,  his  Lordship  reserved  the  following 
questions  for  the  opinion  of  the  Judges : 

1st,  Can  a  physician,  surgeon,  or  apothecary,  be  law- 
fully appointed  and  paid  by  the  Grand  Jury  of  a  county 
at  large,  for  a  bridewell,  whether  district  or  otherwise' 

2dly,  Can  the  amount  of  an  apothecary's  bill,  for 
medicines  or  other  necessaries  for  prisoners  in  a  bride- 
well, whether  district  or  otherwise,  be  lawfully  pre- 
sented ? 


iiii 


3dly,  If  the  ^amount  of  said  bill  can  be  legally  pre- 
sented, can  it  be  presented  for  any  apothecary,  except 
the  apothecary  to  the  county  gaol  ? 


[April  27 


)FFICERS  of 

i. 


id  jury  for  a  5i-i(/p- 
1  bridewell  may  be 
,  but  not  otherwise. 


Bushe,  C.  J., 
'  WicUow,  in 
me  county  in 
f  Baltinglass, 
he  following 


3cary,  be  law- 
ry  of  a  county 
or  otherwise: 


1825.J 


COURT   HOUSE   PRESENTMENT. 


44 


Eleven  Judges  (Smith,  B.,  being  absent)  unani- 
*mously  agreed  upon  the  following  answers: — To  the 
fir.st  question:  that  there  can  be  but  one  physician,  sur- 
geon, or  *  apothecary,  for  all  the  prisons  in  the  [*45] 
^ounty,  and  that  therefore  a  medical  officer  cannot  be 
appointed  by  a  county  Grand  Jury  for  a  bridewell.  To 
the  second  question :  that  the  amount  of  the  apothecary's 
bill  for  prisoners  in  a  bridewell  can  be  presented  for,  if 
'  furnished  by  the  apothecary  of  the  county  gaol.  The 
third  question  was  answered  in  the  negative  (a). 

(«)  These  questions  depended  on  the  enactments  of  the  .50  G.  3,  c.  103,  as.  3,  9, 
JO-54,  and  the  3  G.  4,  e.  64,  ss.  2G,  28, 31-36,  which  arc  now  repealed  by  the  Gene- 
|b1  Prison  Act,  7  G.  4,  c.  74.  But  the  decision  may  probably  apply  to  that  Act. — 
Vide  ss.  72,  74. 


.^ 


In  the  Matter  of  a  PRESENTMENT  for  a  COURT  HOUSE, 
^  in  the  County  of  CAVAN. 


ary's  bill,  for 

ers  in  a  bride- 

lawfully  pre- 


)e  legally  pre- 
lecary,  except 


;  ,«A  presentment  of  a  sum  for  additional  works  done  In  a  new  court  house,  not  in- 
cluded in  the  original  contract,  is  illegal,  under  the  53  G,  III,  c.  131. 


^'iie  Grand  Jury  of  the  County  of  Cavan  having  pre- 
sented that  a  new  court  house  should  be  built  in  the 
town  of  Cavan,  overseers  were  appointed  under  the  sta- 
tute 53  Geo.  III.  c.  131  {h).    A  contract  for  the  building 

(6)  This  act  is  still  in  force,  taken  in  connexion  with  s.  G9  of  6  &  7  W.  4,  c.  116. 

8 


\% 


11 


48 


JEBB'S   RESERVED   CASES. 


[April  27 


of  such  court  house,  pursuant  to  a  plan  and  estimate, 
War.  duly  entered  ii.to,  and  approved  of  by  the  subse- 
quent Grand  Jury.  After  the  work  specified  in  the  con- 
tract had  been  finished,  the  overseers  being  of  opinion 
that  several  additions  were  requisite,  for  thj  purpose  of 
making  the  building  more  commodious,  gave  direction 
to  the  contractors  to  make  such  additions  to  the  work, 
which  were  accordingly  executed.  An  account  of  the  ex- 
pense of  said  additional  work,  entitled  "A  bill  of  sundry 
"  additional  works  done  in  the  new  court  house  of  Cavan, 
"not  included  in  the  contract;  materials  furnished  by 
"  [*46]  Williams  *  and  Coclcburn/^  was  furnished  by 
the  contractors  to  the  overseers,  amounting  to  the  sum 
of  £  975  95.  8d.;  which  account  having  been  submitted 
to,  and  investigated  by,  the  Grand  Jury  at  the  last 
assizes,  was  approved  of  by  them,  and  the  following 
presentment  was  made :  "  We  present  the  suui  of  £  1000 
*'  to  the  commissioners  of  the  new  court  house,  in  aid  of 
"JE6000  already  borrowed,  for  sundry  works  executed 
"in  said  court  house;  said  sum  of  £1000  to  be  levied 
"  by  successive  yearly  instalments  of  £50  each,"  &c. 
It  occurred  to  Vandeleur,  J.,  that  this  presentment, 
although  under  the  circumstances  perfectly  just,  was 
not  authorized  by  any  statute,  and  he  therefore  respited 
it,  in  order  to  obtain  the  opinion  of  the  Judges,  as  to 
whether  it  was  legal  or  not. 


i 


IH      1 


Ten  Judges  met,  six  of  whom  (Bushe,  C.  J.,  Moore, 
J.,  Johnson,  J.,  Jebb,  J.,  Burton,  J.,  and  Vandeleur, 


[April  27 

1(1  estimate, 
r  the  subse- 
l  in  the  con- 
T  of  opinion 
J  purpose  of 
ive  direction 
to  the  work, 
intoftheex- 
lill  of  sundry 
ise  of  Cavan, 
burnished  by 
burnished  by 
y  to  the  sum 
en  submitted 
r  at  the  last 
he  following 
urn  of  £1000 
>use,  in  aid  of 
rks  executed 
)  to  be  levied 
0  each,"  &c. 
presentment, 
5tly  just,  was 
efore  respited 
Judges,  as  to 


C.  J.,  Moore, 
1  Vandeleur, 


leari.] 


HEX   t).  CRONE. 


46 


J.,)  were  of  opinion,  that  the  presentment  for  additional 
works  over  and  above  the  sum  originally  presented  and 
contracted  for,  was  illegal  under  the  53  Geo.  III.  c.  131. 
The  other  four  Judges  were  of  a  contrary  opinion.  But 
all  the  Judges  being  of  opinion,  that  the  sum  expended 
-ought  to  be  paid,  Vandeleur,  J.,  signified  this  opinion  to 
Mr.  Goulhurn,  the  Under  Secretary  for  Ireland,  with  a 
'  recommendation,  that  government  would  make  some 
provision  for  the  purpose. 


THE  KING  V.  JOHN  CRONE. 


[*47] 


Where  a  statute  mode  the  stealing  of  a  promissory  note  larceny,  and  a  subsequent 

i   statute  provided  for  the  punishment  of  receivers  of  stolen  "goods  or  cimttuls:" 

Held  tiiat  promissory  notes  were  "goods"  within  the  meaning  of  tlic  latter  Act. 

'Tins  case  was  reserved  by  Pennefather,  B.,  from  the 
^Spring  Assizes  at  CorTc,  in  1825,  for  the  opinion  of  the 
fjudges. 


The  prisoner  was  convicted  of  receiving  a  promissory 
fnote,  knowing  that  it  had  been  before  feloniously  stolen. 
It  was  objected  by  iiis  counsel  that  the  stealing  of  a 
promissory  note  was  not  an  offence  at  common  law; 
that  it  became  so  in  consequence  of  the  3  Geo.  II.  c.  4, 
sec.  3;  that  the  4  Anne,  c.  9,  sec.  4,  and  8  Anne,  c.  8, 


ji  % 


m 


I  it;! 


47 


JKBirS   RESERVED  CASES. 


April  U7 


for  the  punishment  of  receivers  of  stolen  goods,  did  not 
extend  to  receivers  of  promissory  notes,  which  are  not 
"goods  or  chattels;"  and  that  the  3  Geo.  IV.  c.  24,  for 
the  punishment  of  receivers  of  "stolen  securities,"  did 
not  extend  to  Ireland. 

The  questions  proposed  hy  the  learned  Judge,  were — 
1st.  Whether  the  3  Geo.  IV.  c.  24,  extended  to  Ireland! 
2dly.  Whether  the  conviction  was  j^uod  independently 
of  the  statute  ? 

Ele  .:n  Judges  (Smith,  B.,  being  absent),  were  of 
opinion  that  the  conviction  was  right  under  the  23  & 
24  Geo.  III.  c.  45,  which  makes  it  a  misdemeanor  to 
"buy  or  receive  an;y  goods  or  cliattels,  knowing  the 
"  same  to  have  been  stolen."  It  was  so  decided  by  the 
majority  of  the  Judges  in  1809,  in  the  case  of  Rex  v. 
Grei/,  May7ie  and  Day,  J.  J.,  dissenting  («).  It  was 
thought  unnecessary  to  declare  any  opinion  whether  the 
3  Geo.  IV.,  c.  24,  extended  to  Ireland;  the  ground  of 
[*48]  the  decision  of  the  Judges  being  that  the  *  3  Geo. 
II.  c.  4,  makes  it  felony  to  steal  bank  notes,  &c. ;  and 
that  the  23  &  24  Geo.  III.  c.  45,  makes  the  receiving 
of  "stolen  goods"  a  misdemeanor,  punishable  as  such, 
and  an  offence  which  may  be  tried  before  the  trial  of 
the  principal  offence;  and  that  bank  notes,  &c.,  are 
comprehended  within  the  meaning  of  the  word  "goods," 

(o)  See  Hayes'  Criminal  I,aw,  24. 


[April  'il 

)ocls,  did  not 
Inch  arc  not 
.V.  c.  24,  for 
jurities,"  did 


idge,  were— 
1  to  Ireland  I 
idependently 


3nt),  were  of 
der  the  23  & 
idemeanor  to 
knowing  the 
3cided  hy  the 
^se  of  Rez  v. 
(a).  It  was 
1  whether  the 
tie  ground  of 
t  the  *  3  Geo. 
tes,  &c.;  and 
the  receiving 
able  as  such, 
e  the  trial  of 
)tcs,  &c.,  are 
vord  "goods," 


lasss. 


REX   V.   FULTON. 


48 


they  being  made  the  subject  of  larceny  by  the  statute  3 
Geo.  II.  c.  4.   '(). 


(a)  Tlic3  Act  2.')  it  21  Geo.  3,  c.  lH,  Is  now  repeal.  '1,  (ttH  nro  iilso  (lio  oilier  Acta 
referred  t(i  in  tliin  uune);  mid  tlie  Act  now  in  force  reH|)eetin)f  rceeivers  of  (ilolcn 
property,  the  9  G.  4,  o.  US,  ».  47,  niiikeM  tlio  rcceiviriif  ii  "valuable  security"  a  pun- 

t liable  otl'enee.     Tliu  question,  tlierefore,  eiinnot  nrine   uginw,  (ind   this  ease   iH 
iLiely  uu  unlhority  so  far  us  it  illuslrutuii  Iho  meaning  of  tlio  woidi  "goods  and 
elmtlels." 


I 


THE  QUEEN  «.  FULTON. 


An  indictment  for  liavinjr  in  possession  a  forged  note  of  the  Uoyal  Bank  of  Scollund, 
willi  intent  to  utter  it,  cannot  bo  supported  at  cuininon  law. 


Margery  Fulton  was  convicted  before  Jehb,  J.,  at  the 
Rummer  Assizes  for  the  County  of  Do7vu,  in  1825,  on 
911  indictment  charging  her  with  having  in  her  pos- 
lession  a  forged  note  of  the  Royal  Bank  of  Scotland, 
Jtno^^  g  it  to  1)6  forged,  and  with  intent  to  pass  it  as  a 
^  nni.^e  note.  The  indictment  was  framed  on  a  deci- 
fion  of  tlie  twelve  Judges  in  Ireland,  in  the  case  of  Rex 
t.  Willis,  in  1797  (Z»),  according  to  which  several  convic- 


II  (6)  This  case  appeared  from  a  certificate  of  B.  Riky,  Esq.,  Clerk  of  the  Crown, 
ftt  have  been  us  follows:  At  the  Commission  Court  in  Duldin,  on  December  D, 
1797,  Anthony  Willis  was  indicted  for  that  he  had  knowingly  in  his  possession  /iO 
pieces  of  counterfeit  money  and  coin  made  to  resemble  shillings,  with  intent  to 
ntter  them,  and  was  found  ftuilty.  A  question  having  been  reserved,  whether  the 
indictuunt  contained  any  offence  at  common  law,  the  Judges  were  unanimous  in 
supporting  the  conviction.  The  prisoner  was  sentenced  to  three  months'  imprison- 
nicnt. 


4 


i 


m 


III 


Ml 


Hffl 

i,  '■ 

1 

liiiiiiii: 

48 


.IRnn'S   RKSRRVF.I)  CASR8. 


[MichoolmnN 


tions  had  since  taken  place.  But  as  it  appeared  from 
the  cases  of  Hex  v.  Ilrafh  (c),  and  lice  v.  Stewart  (iJ), 
then  recently  published,  tliat  the  twelve  Judges  in 
[*4i)]  Engliind  had  decided  that  this  was  not  a  *  mis- 
demeanor, on  the  ground  that  no  act  was  charged  to 
have  boon  committed,  the  opinion  of  the  Judges  was 
requested  as  to  whether  this  conviction  was  legal. 

The  learned  Judge  added  that  the  evidence  would 
have  fully  sustained  an  indictment  for  disposing  of  and 
putting  away  the  forged  note,  under  the  45  Geo.  III.  c. 
89,  s.  1  (fl);  and  that  it  was  a  very  fit  case  for  such  a 
prosecution,  as  the  prisoner  appeared  to  be  an  extensive 
dealer  in  forged  notes;  or  it  would  have  sustained  an 
indictment  for  procuring  a  forged  note  with  intent  to 
utter  it,  on  the  authority  of  Rex  v.  Fuller  and  Robin- 
son {h).  He,  therefore,  further  requested  the  opinion 
of  the  Judges,  whether  in  case  it  should  be  held  that 
the  conviction  was  wrong,  it  would  be  proper  to  recom- 
mend the  prisoner  to  a  limited  pardon  (c),  extending  to 
this  conviction  only,  and  that  the  prisoner  should  be 
detained  until  the  next  Assizes,  to  be  indicted  for  dis- 
posing of,  and  putting  away  a  forged  note,  or  for 
procuring  a  forged  note  with  intent  to  utter  it. 

The  Judges  unanimously  ruled  that  the  indictment 


(c)  Russ.  &,  Ry.  184.  ((/)  Russ.  &  Ry.  288. 

(«)  Repealed  by  1  W.  4.  c.  C6,  s.  31.— But  sec  the  39  G.  3.  c.  f)3,  s.  1. 

(fc)  Russ.  &.  Ry.  308.  (c)  Sec  Russ.  &,  Ry.  411. 


^^ 


[Micliiiolmnii 

ipoared  from 
.  Stewart  {i]), 

0  Judges  ill 
«  not  a  *  mis- 
ts charged  to 
)  Judges  was 
IS  legal. 

idence  would 
posing  of  and 
[5  Geo.  III.  c 
ise  for  such  a 
B  an  extensive 
3  sustained  an 
vith  intent  to 
er  and  Robin- 
d  the  opinion 
A  be  held  that 
oper  to  recom- 
),  extending  to 
ner  should  be 
ndicted  for  dis- 

1  note,  or  for 
ter  it. 

the  indictment 


J835.] 


REX   V.   ROSiSITER. 


was  had,  and  that  a  pardon  should  bo  recommended; 
but  that  the  prisoner  should  be  detained  for  a  further 
kidictmcnt  {d). 


ii  (il)  The  cttsc  of  Imvinjr  in  podscHHioti,  with  intent,  &.C.,  /rnld  or  nilrrr  coin,  i» 
£>w  providid  for  \>y  the  3  W.  I,  c.  31,  h.  8;  iiiul  thi'  HI)  (J.  3.  c.  {V.i,  h.  .I,  and  llic  ■»!) 
1p.  3,  c.  13,  «,  3,  niiiito  thu  huvin);  in  poHMCMnion  with  intuiit,  iVc,  Uunl(  of  Enalnnd 
Ir  Ireland  notes,  felony,  lint  thu  cunu  of  a  Seoleh  liniik  notu  n|)|iearH  to  lie  the  hiiiuo 
■•  that  of  liny  private  proniisHory  nolo,  the  poN.seHNion  of  which,  lh()U;;h  the  note  hu 
l^rtrrd,  nnd  the  jioHNegHiun  bo  witii  intent,  &.C.,  in  no  otlcneo  either  ut  coiiinion  law 
«  by  Klatute. 

See  1  UiUH.  oil  CriiiieH,  44,  SliarH wood's  ud.  Piiil.  Itill. 


THE  KING  V.  ROSSITER. 


[*50] 


In  an  indietincnt  for  robbinff  a  mail  of  n  bag  of  letters,  it  is  not  necessary  to  stuto 
an  asportation,  but  it  is  auilicient  to  usu  the  words  of  the  statute. 


SiMOX  RossiTER  was  tried  and  convicted  before  Johnson, 
|.,  at  the  Summer  Assizes  at  Wexford,  in  1825,  for  a 
luail  coach  robbery.  The  indictment  was  under  the 
,|3  &  24  Geo.  III.  c.  17,  s.  37  (a),  and  contained  three 
Ijounts.  The  first  (as  far  as  it  is  necessary  to  state  it 
^r  the  present  question),  charged  that  the  prisoner 
<fdid  feloniously  rob  a  certain  mail  in  which  letters 


il 


I.  c.  63,8. 1. 
ly.4ll. 


,  (fl)  This  Act  is  rc|)culed  by  the  1  Viet.  c.  .33.  But  the  case  will  pcrliaps  apply 
•qually  to  an  indictment  under  tlie  corresponding  enactment  now  in  Ibtce,  viz.  1 
Vict.  c.  3U,  s.  28. 


?<1 


f! 


m\ 


W' 


50  JEBB'S    RESERVED    CASES.  [Jimimry  23 

"were  then  and  there  sent  by  post."  The  second 
charged  that  he  did  "  feloniously  steal  and  feloniously 
"  take  from  and  out  of  a  certain  bag  in  which  letters 
**  were  then  and  there  sent  by  the  post,  &c.,  a  certain 
letter,"  &c.  The  third  charged  that  the  prisoner  "felo- 
'*  niously  did  steal  and  feloniously  take  from  and  out  of 
"  a  certain  mail  sent  by  post,  &c.,  a  certain  bag  of  let- 
"ters,"  &/C.  The  indictment  laid  the  offence  against 
the  peace  and  statute. 

The  prisoner's  counsel  moved  in  arrest  of  judgment. 
on  the  ground  that  the  offence  with  which  the  prisoner 
was  charged  was  a  larceny  created  by  statute,  and  that 
the  description  of  a  larceny  created  by  statute  (necessary 
to  appear,  and  to  be  stated  in  an  indictment  for  such  an 
offence),  did  not  differ  in  the  respect  to  be  presently 
noticed,  from  the  description  of  that  offence  in  an  indict- 
ment for  larceny  at  common  law ;  and  that  in  the  latter 
case  it  was  essential  the  indictment  should  state  an 
asportation  or  carrying  away;  or,  in  the  words  alvvayi? 
[*51]  used  in  such  an  indictment,  that  the  *  prisoner 
"did  feloniously  take  and  carry  away;"  and  that  in  an 
indictment  for  a  larceny  created  by  statute,  it  is  not 
sufficient  to  state  the  offence  in  the  words  of  the  statute, 
without  charging  a  taking  and  carrying  away.  He  cii.J 
1  Hawk.  142,  153,  207,  211;  Chitt.  C.  L.  919;  2  East's 
C.  L.  554-570;  Hale's  P.  C.  190;  2  Leach's  C.  L.  0;K', 
The  learned  Judge  respited  the  sentence  until  the  opi- 
nions of  the  Judges  should  be  known. 


J,! 


ii' 


M 


[January  2j 

The  second 
1  feloniously 
vhich  letters 
X.,  a  certain 
•isoiier  "felo- 
m  and  out  of 
in  bag  of  let- 
fence  against 


1826.J 


REX   ('.   REILLY. 


Tjie  Judges  were  all  of  opinion  that  the  conviction 
was  right  upon  the  second  and  third  counts;  that  the 
,  statute  constituted  a  new  species  of  offence,  and  did  not 
refer  certain  acts  to  a  known  species  of  crime;  and  that 
it  was  sufficient  to  use  the  words  of  the  statute.  Some 
iioubts  were  expressed,  but  no  opinion  was  given,  as  to 
llhe  sufficiency  of  the  first  count. 


01  judgment. 
L  the  prisoner 
tute,  and  that 
ite  (necessary 
nt  for  such  an 
)  be  presently 
se  in  an  indict- 
it  in  the  latter 
ould  state  an 
words  always 
^he  *  prisoner 
md  that  iji  an 
tute,  it  is  not 

of  the  statute, 
way.   He  civ, J 

919;  2  East's 

fch's  C.  L.  o;]-i 
until  the  opi- 


THE  KING  V.  REILLY. 


A  person  entrusted  to  drive  a  number  of  slicop  a  certaiii  distannc,  and  on  tlie  way 
■cparatiiii;  one  of  tlieni  from  the  rest,  '.vith  the  intention  of  fraudulently  converting 
it  to  liis  own  use,  is  not  ffuilty  of  larceny.    In  such  a  case  the  animus  fui audi 

(•upon  the  original  taking  should  be  left  to  the  Jury, 


The  following  report  was  submitted    by   Sir  Jonas 
^reene,'  Recorder  of  Dublin,  to  the  Judges. 

"  The  prisoner  was  indicted  for  stealing  a  sheep,  the 
property  of  George  Guest,  and  was  found  guilty,  under 
le  following  circumstances:  Mr.  Guest,  who  resided 
i^  Lioerpool,  stated,  in  substance,  that  he  bought  upon 
Thursday  the  30th  cf  June  last,  a  lot  of  30  sheep,  in 
Smithfteld  market ;  that  he  had  them  directly  after  the 
sale  branded  upon  the  back  with  his  own  brand,  and 
■f  9 


I'll 


i 


54! 

if.] 


J^ 


1 


■I, 

■  J 


!!ll 


IP' 

lll. 

1  p ' 

|il||l:  " 

|||j> 

11  1^^ 

11' 

51 


JEBB'S   RESERVED   CASES. 


[January  25 


arranged,  tbrougli  persons  of  the  names  of  Wihon  and 
Graham,  that  they  sliould  be  driven  on  the  same  day 
[*52]  to  the  water's  edge,  for  *  the  purpose  of  exporta- 
tion to  Liverpool.  That  he  set  off  himself  immediately 
for  that  town,  but  that  after  his  arrival  there,  he  receiv- 
ed only  29  sheep,  instead  of  the  30.  That  ho  thereupon 
returned  to  DiihUn,  and  that  on  the  6th  of  July,  being 
the  Wednesday  next  after  the  purchase,  he  saw  the 
missing  sheep  in  a  field  near  Vulliii.  Samuel  Fisher, 
the  next  witness,  being  examined,  swore  that  on  the 
same  Thursday  mentioned  by  Mr.  Gncst  as  the  day  of 
the  purchase,  the  prisoner  and  anotlier  man  were  driv- 
ing a  lot  of  sheep  down  (treat  Brunswich-street  (which 
appeared  to  have  been  the  route  to  the  Pigeon  House); 
that  he  was  standing  at  the  time  in  his  timber  yard, 
which  opens  upon  the  street,  when  the  two  drivers 
solicited  permission  to  leave  one  of  the  sheep,  which 
they  represented  to  have  tired,  for  some  time  in  his 
yard ;  that  he  in  consequence  took  from  them  a  sheep, 
(which  was  proved  to  be  the  one  identified  by  Mr. 
Guest  upon  his  return  to  Dublin,  as  the  missing  sheep), 
and  that  tiie  drivers  thereupon  proceeded  forward  in  the 
same  direction  as  before.  That,  however,  suspecting  a 
fraud,  he  took  measures  with  the  police,  by  means  of 
whicli  the  prisoner,  who  called  the  next  morning  for 
the  sheep,  wa,s  apprehended.  The  peace  officer  who 
made  the  arrest  was  examined,  and  proved  declarations 
of  the  prisoner  as  to  the  property  of  the  sheep,  which  I 
do  not  consider  it  for  the  purposes  of  this  case  necessary 


[January  25 

Wilson  and 
le  same  day 
)  of  exporta- 
mmcdiately 
3,  he  receiv- 
e  thereupon 
July,  being 
he  saw  the 
miiel  Fisher, 
that  on  the 
IS  the  day  of 
1  were  driv- 
Hreet  (which 
jeon  House); 
timber  yard, 
two  drivers 
sheep,  which 
time  in  his 
hem  a  sheep, 
ified  by  Mr, 
issing-  sheep), 
jrward  in  the 
suspecting  a 
by  means  of 
morning  for 
e  olFiccr  who 
:1  declarations 
lieep,  which  I 
;ase  necessary 


]83fi.l 


REX  V.  UEILLY. 


.VI 


to  detail.     I  should  have  observed,  that  Mr.  Guest  did 
not  accompany  the  drivers. 

"  Neither  of  tiic  persons  ( Wilson  and  Graham),  al- 
luded to  by  Mr.  Guest,  was  examined,  and  the  case  in 
'some  respects  came  imperfectly  before  the  Court;  how- 
ever, it  was  to  be  collected  from  all  the  circumstances, 
and  such  was  the  opinion  of  the  jury,  that  the  prisoner 
and  his  *  companions  were  of  the  class  of  persons  [*53] 
who  drive  for  hire,  from  Smithfield  market,  cattle  which 
•may  happen  to  be  purchased  there,  to  such  places  as 
.the  purchasers  or  those  acting  for  them  may  direct. 
The  prisoner  was  not  defended,  and  produced  no  wit- 
nesses. 

"  It  did  not  appear  to  me  that  there  was  any  reason- 
able ground  for  presuming  that  the  sheep  were  taken  by 
.the  drivers  originally  (I  mean  upon  the  delivery  for  the 
purpose  of  being  driven),  with  any  felonious  intent,  and 
I  did  not,  therefore,  in  terms  present  that  consideration 
of  the  case  to  the  jury.     I  thought,  however,  that  the 
^ase  might  be  reasonably  assimilated  to  the  familiar 
|Dne  in  the  books  of  a  carrier  separating  part  of  what  he 
'|s  entrusted  to  carry  from  the  residue,  and  embezzling 
luch  part;  and  I  directed  the  jury,  if  they  were  satisfied 
that  the  lot  of  sheep  the  prisoner  and  his  companion 
■  were  driving,  was  the  one  purchased  by  Mr.  Guest,  and 
that  whilst  driving  them  upon  the  occasion  stated,  they 
singled  out  and  took  from  the  lot  at  large  the  sheep  in 


I, 


'lit 


!*'^ ,: 


m 


.IKIUrS    RESERVED    CASES, 


[January  il'i 


(jucslion,  with  the  intention  of  fraudulently  converting 
it  to  their  own  use,  to  find  in  such  event  the  prisoner 
guilty.     He  was  found  guilty  accordingly. 

"  I  determined  to  reserve  the  question  as  to  the  pro- 
priety of  my  direction,  for  future  consideration.  I  have, 
accordingly,  reflected  upon  it  a  good  deal,  and  adverting 
to  some  modern  determinations  in  EiKjland,  but  parti- 
cularly the  case  of  Rex  v.  Madox,  Iluss.  and  Ry.  Cr.  C. 
92,  I  apprehend  that  my  direction  to  the  jury  was  erro- 
neous, and  that  I  should  in  the  circumstances  and  event 
supposed  in  that  part  of  my  charge,  have  directed  an 
[*54]  acquittal.  I  *  think  it  right,  however,  to  submit 
the  case  to  the  consideration  and  decision  of  the  Judges." 

The  Judges  were  v  ^""^imously  of  opinion  that  tlic 
conviction  was  wrong,  i.iat  the  prisoner  was  not  a 
servant,  but  a  special  bailee,  and  that  according  to  the 
adjudged  cases  there  was  not  such  a  severance  of  the 
sheep  as  to  put  an  end  to  the  bailment.  They  also 
held  that  the  animus  furandi  should  have  been  left  to 
the  jury  («). 


(a)  Vide  Rex  v.  Slock,  1  Mood.  C.  C,  87. 


Sec  alwo  unto,  King  v.  Beard,  p.  !),  and  cisch  in  noto:  parlicuhirly  flic  case  of 
Rex  V.  M'Nainee,  1  Moud.  3G8,  u  case  very  Kiuiilar  to  tiiu  i>rc,scnt,  but  where  ei;rli' 
Judges,  (four  being  absent,)  held  tliat  tlic  drovier  was  but  a  servant,  and  that 
his  possesHion  was  the  owner's  possession,  and,  therefore,  that  liio  conviction  was 
riglit.    Sec  post,  King  v.  Gourlay,  p.  83. 


[January  i.'.') 

converting 
,he  prisoner 


5  to  the  pro- 
on.  I  liave, 
id  adverting 
r/,  but  parli- 
1  lly.  Cr.  C. 
ry  was  erro- 
Ds  and  event 
directed  an 
er,  to  submit 
tlie  Judges." 

ion  that  tlic 
r  was  not  a 
ording  to  the 
3rance  of  the 
They  also 
B  been  left  to 


I63r,.] 


in:X   V.  SIIKRUAN. 


04 


icularly  the  caKi-  o' 

uiit,  but  wlieto  ciclil 

a  survant,  and  tin' 

the  convictiim  was 


THE  KING  V.  SIIEEIIAN. 


Jhhl  unanimously,  hy  eleven  Judges,  tliat  tlie  testimony  of  an  accomplice,  tiinujrh 
nlldijcljier  uncorroborated,  is  evidence  to  goto  a  jury;  tliat  a  conviction  upon 
siicli  evidence  is  legal;  and  that  there  can  be  no  general  rule  as  to  the  cautionary 
directions  to  hi'  given  to  the  jury  resjiecting  ids  evidence.  IJut  held  also  (hy  six 
Judges  to  five),  that  the  jury  should,  in  the  generality  of  cases,  ho  told,  that  it 
vas  [he  jirurticf  to  disregard  the  aeeoniplice's  testimony,  uidess  there  was  some 
corroboration;  and  that  corroboration  as  to  the  circumstances  of  the  case  merely, 
and  not  as  to  the  person  charged,  is  deserving  of  very  slight  consideration. 


David  Siieeiian  was  indicted  for  burglary  in  the  house 
of  Thomas  Cummings,  on  the  niglit  of  Thursday,  the 
9th  of  December,  1824,  and  was  tried  before  Moore,  J., 
at  the  Spring  Assizes  for  the  City  of  Waterfoj'd,  in  1825. 
Thomas  Cnm?m?igs  deposed,  that  on  the  night  of  the  9th 
of  December,  when  he  was  in  bed  in  his  house  at  Drum- 
risk,  the  door  (which  had  been  fastened)  was  broken  in 
a  little  before  midnight,  and  four  persons  entered.     He 
feaw  there  were  four  by  the  light  of  the  moon.     They 
.  made  him  cover  his  head,  and  threatened  to  murder 
Mhim  if  he  looked  up ;  he  could  not  therefore  see  their 
_;|Jaces.     They  asked  lor  arms;  he  had  none,  and  told 
|them  so.     They  lighted  a  candle  and  searched,  and 
temained  nearly  an  hour  in  the  house.     There  was  one 
all  the  time  over  him  as  a  *  guard.     When  they  [*55] 
went  away,  he  got  up  and  lighted  a  candle.     All  his 
and  his  family's  clothes  were  taken.      On  the  11th, 
several  of  the  articles  that  had  becii  taken,  were  found 


m 


il': 


13 


li' 


f  ■; 


'!  ''X'. 


m 


JEDB'S   KESERVRD   CASES. 


[February  1') 


by  him  in  the  house  of  one  Eleanor  Purcdl  in  Water- 
foril ;  and  a  cloak  of  liis  wife  was  found  in  the  house  in 
which  James  Sullivan  (the  accomphce  after  mentioned), 
was  apprehended. 

Mar?/  Cumminga,  wife  to  the  last  witness,  deposed 
generally  to  the  same  facts,  and  identified  the  cloak,  and 
several  other  of  the  articles. 


I: 


James  Sullivan,  an  accomplice,  stated,  that  on  Thurs- 
day nitfht,  two  weeks  before  Christinas,  he  and  the 
prisoner.  Shcehan,  and  two  others,  went  to  the  house  of 
Thomas  ^uhimings  to  conmiit  a  robbery.  Tlicy  had 
planned  it  two  nights  before.  The  prisoner,  Shechaii, 
oljserved  it  was  a  snng  place,  and  that  there  was  no 
danger  in  going.  SJieehan  and  the  others  came  to  wit- 
ness's lodgings  in  Waterford  for  the  purpose,  and  they 
set  out  abou'i.  9  o'clock — it  was  about  six  miles  distant. 
They  were  something  more  than  two  hours  going.  The 
door  was  fast;  they  forced  it  in,  and  all  four  went  in; 
they  asked  was  any  stranger  within,  and  were  answered 
there  was  none ;  they  then  directed  the  persons  in  bed 
to  cover  their  faces,  or  they  would  injure  them.  The 
prisons,  Sheehan,  then  lighted  a  candle,  and  gave  it  to 
witness  to  hold.  They  had  two  pistols.  There  were 
two  beds  in  the  room.  After  being  told  there  were  no 
strauL^crs,  and  before  lighting  the  candle,  tliey  asked 
for  arms,  and  were  t'dd  there  wer(^  none.  They  gatlicr- 
ed  all  the  clothes  in  two  bundles,  and  went  olF,  making 


liiiKi 


[Fctiruary  1.^ 

//  in  Watcr- 

the  house  in 

mentioned), 


1820.' 


REX   V.  SHEEIIAN. 


50 


short  cuts  to  avoid  the  road ;  and  about  a  mile  from  the 
town,  they  divided  *  the  things  taken.  The  cloak  [*5G] 
that  the  former  witness  identified,  fell  with  other  articles 
to  his  share. 


ess,  deposed 
le  cloak,  and 


at  on  Thurs- 

he  and  the 

the  house  of 

,     They  had 

ler,  Sheehaii, 

here  was  no 

came  to  wit- 

ose,  and  they 

niles  distant. 

(Toinij.    Tht" 

bur  went  in; 

ere  answered 

ersons  in  bed 

them.     The 

md  gave  it  to 

There  were 

there  were  no 

!,  they  asked 

They  gathcr- 

it  off,  making 


l-  The  learned  Judge  left  the  case  to  the  jury,  with  the 
jusual  observations  as  to  the  jealousy  and  suspicion  with 
which  they  ought  to  receive  the  evidence  of  an  accom- 

V  plic(>;  directing  them  not  to  act  upon  it,  unless  in  their 
opniion  it  were  corroborated  by  the  testimony  of  the 
other  two  witnesses,  if  they  considered  them  entitled 
to  credit.  The  jury  found  the  prisoner  guilty,  but  re- 
commended him  to  mercy,  which  was  extended  to  him, 
so  far  as  to  save  his  life;  but  considering  the  doubts 
which  had  been  then  lately  suggested,  where  the  cor- 
roborative matter  is  general,  as  to  the  mere  details  of  the 
transaction,  and  does  not  substantiate  any  thing  which 
the  accomplice  has  said  respecting  the  prisoner  person- 
-ally,  the  learned  Judge  reserved  the  rpiestion,  whether 
in  this  case  there  was  any  evidence  for  the  consideration 

'|of  the  jury,  to  corroborate  the  accomplice,  as  to  the  pri- 
ijoner  Shcehcoi  being  one  of  the  burijlars. 

All  the  Judges  being  present,  except  O'Grady,  C. 
p.,  they  were  unanimously  of  opinion,  that  the  charge 
■iind  the  conviction  were  right;  and  that  in  point  of  law, 
the  testimony  of  an  accomplice,  though  altogether  uncor- 
roborated,  was  evidence  to  be  submitted  to  a  jury,  and 
that  a  conviction  upon  it  would  be  legal.     But  a  long 


1, 


rki 


/•  111 


56 


JKUB'S    RESERVED   CASES. 


[Fubruuiy  ]!i 


discussion  took  place,  respecting  the  practice  oh  the  sub- 
ject of  accomplices,  and  the  manner  in  which  Judges 
ought  to  advise  jurors  with  regard  to  the  credit  to  be 
given  to  them,  and  to  the  degree  of  weight  to  be  at- 
tached to  certain  particulars  deposed  to  by  unimpeached 
witnesses,  as  confirmatory  of  the  accomplice's  testimo- 
[*57]  ny ;  and  the  *  Judges,  with  regard  to  these  ques- 
tions, delivered  their  opinions  seriatim. 


'ill 


It  was  the  opinion  of  Lord  Norbury,  C.  J.  C.  Pleas, 
M'Clelland,  B.,  Burton,  J.,  Pennefather,  B.,  and 
ToRRENS,  J.,  that  the  credit  of  an  accomplice  ought, 
generally  speaking,  to  be  offered  to  the  jury,  like  the 
credit  of  any  other  man  of  impeached  character,  and  that, 
generally  speaking,  a  corroboration  in  the  circumstances 
of  the  crime  charged,  though  entirely  unaccompanied 
by  any  circumstance  applicable  to  the  prisoner  on  trial, 
or  ♦:o  any  other  person  charged  by  the  accomplice,  was 
a  substantial  corroboration,  fit  to  be  examined  and 
weighed.  That  there  ought  not  to  be  any  rule  of 
priictice,  by  whicii  juries  should  be  advised  to  disre- 
gard, or  to  pay  slight  attention  to,  such  circumstances 
of  corroboration  as  aljove  mentioned.  It  was  the  opi- 
nion of  BusiiE,  C.  J.,  Smith,  B.,  Moore,  J.,  Johnson, 
J.,  Vandeleur,  J.,  and  Jeer,  J.,  that  an  accomplice 
wfifi  in  degree  to  be  treated  differently  from  other  wit- 
nesses of  impeached  character;  and  that  a  jury,  besides 
being  cautioned  to  regard  him  with  jealousy,  ought  to 
be  told,  that  it  was  the  practice  to  disre  ard  his  testi- 


:•; 


thi 


182fi. 


Ri:X   V.   SirCFIIAN. 


rn 


mony,  unless  there  were  some  corroboration.  With 
regard  to  corroboration,  it  wan  the  opirdon  of  tliese 
Judges,  that  the  accompHoe  being  supported  in  his 
narrative  of  the  transaction  only,  without  corroboration 
as  to  any  person  charged,  was  so  shglit  a  confirmation, 
as  to  be  entitled  to  very  httle,  if  any,  attention,  and  that 
a  jury  should  generally  be  so  told.  They  thought  so 
on  these  grounds:  that  ex  concesso,  an  accomplice  was 
concerned  in  the  crime,  and  knew  all  the  facts;  that  it 
was  his  interest  to  relate  the  facts  only,  because  other- 
wise he  would  run  the  risk  of  differing  from  *  the  [*58] 
account  given  by  some  person  present  at  tie  commission 
of  the  crime;  therefore,  that  his  uttering  truth,  with 
regard  to  the  facts,  did  not  lead  to  the  inference,  that 
he  also  told  truth  with  respect  to  the  persons  concerned, 
unless  he  had  reason  to  suppose  that  tl\ere  was  some 
unimpeached  witness,  who  could  also  prove,  that  the 
persons  charged  by  him  were  the  persons  concerned; 
and,  inasmuch  as  in  the  case  supposed,  no  such  person 
appeared  on  the  trial,  he  might  well  suppose  that  their 
persons  were  unknown,  and  could  not  ]m  iiloiitifuHl,  so 
that  he  might  safely  charge  whom  he  pleased. — The 
Jud<j[es  all  ayfrecd,  that  there  could  not  be  a  rule  on  the 
subject,  but  that  each  case  must  stand  on  its  own  cir- 
cumstances. The  difference  between  them  was,  as  to 
i\\Q  practice  in  the  generality  of  cases;  the  first-mentioned 
Judges  holding,  that  it  ought  not  to  be  considered,  and 
that  juries  ought  not  to  he,  advised  that  lliere  w»w  any 
such  practice  as  above-mentioned,  and  that  the  question 
1^ 


' 


1' 


I 


■'II 


m 


i! 

J' 
I 


M 


JEBB'S  RESERVED  CASES, 


[February  lii 


1  «:,>(;. 


should  bo  submitted  to  the  jury,  with  cautionary  direc- 
tions, more  or  less  strong,  according  to  the  particular 
circumstances  of  the  case :  the  latter  Judges  holding, 
that  juries  ought,  generally  speaking,  to  be  told  of  the 
practice,  and  to  be  advised  to  acquit,  where  there  was  no 
confirmation  whatsoever,  and  ought  also  to  be  told,  that 
a  mere  confirmation  in  the  circumstances  of  the  trans- 
action, not  brought  down  in  any  respect  either  to  the 
prisoner  on  trial,  or  to  any  other  person  charged  by  the 
accomplice,  generally  speaking,  scarcely,  if  at  all,  dis- 
tinguishes the  case  from  one  of  no  confirmation. 

In  this  case,  the  prisoner  was   recommended  for 
pardon  (a). 


(a)  For  the  opinions  of  the  late  Lord  Chief  Baron  Joy  upon  the  subject  of  this 
case,  sec  liis  Treatise  "On  the  Evidence  nf  Accomplices  "  1836, 

Sec  also  Rex  v.  ttirhett  and  another,  Russ.  &  Ry,  251;  vvlicre  it  was  held  tiiat 
an  accomplice  being  eontirnied  as  to  the  |iiirticulars  of  his  story,  did  not  require 
confirnmtiun  as  to  the  person  charged.  The  case,  however,  is  not  very  fully  nor 
satistixctorily  reported.  Sec  post,  The  King  \,  Casey,  p,  203;  also,  Roscoe'a  Cri- 
minal  Evidence,  143,  Sharswood's  cd.  Pltil,  1840. 


l»-2(i.] 


REX  0.  GETTY. 


59» 


*  THE   KING  at  the  Prosecution  of  the  Bank  of  Tnl  nd   v. 

GETTY. 


Tlic  prisoner  wns  convicted  on  an  indictment  for  Imving  in  his  possession  a  forfjed 
note  of  the  Hank  of  Ireland.  The  first  oonnt  set  out  the  note  with  the  nnnie  of 
a  si^ninjj  ci(!rli  annexed :  the  second  set  it  out,  us  if  the  name  of  llie  siy^Mip;j 
clcri<  had  been  obliterated.  Tiic  note  wlieii  produced  iiirreci;  with  timt  setc.ii  in 
tiio  Rccond  count,  but  no  cvidonco  was  given  as  to  the  ubl  uratiun.  tfeld  timt 
the  conviction  was  bad. 


The  prisoner  was  tried  before  Johnson,  J.,  upon  an  in- 
dictment, of  which  tlio  first  count  stated  the  note  with 
the  name  of  u  signing  clerk  of  the  Bank  of  Ireland  an- 
nexed, and  as  the  note  would  appear  if  the  forgery  were 
complete,  and  no  obliteration  had  taken  place.  The 
second  count  set  out  the  note,  as  it  appeared  when  pro- 
duced in  evitlence,  that  part  on  which  a  signing  clerk's 
name  would  appear,  if  such  name  had  ever  been  an- 
nexed, being  obliterated,  and  being,  in  fact,  worn  away; 
but  no  trace  of  such  signature  appeared.  No  account 
was  ofiven  in  evidence  how  the  obliteration,  if  such  there 
had  been,  was  effected,  nor,  in  fact,  what  particular 
name  had  been  there,  if  any  such  ever  had  been  affixed. 
The  question  was,  did  the  evidence  support  the  first 
count? — and  if  not,  could  the  indictment  be  supported 
on  an  instrument,  such  as  that  stated  in  the  second 
count  ? 


t 


■iW 


4'1 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0   ^Ktii£ 

■tt  lyi    12.2 


I.I 


Z   li£    12.0 


1^        HA 

11.25  |U   |L6 


-    6" 


v%' 


% 


{►\  // 


Fhotographic 
CarposBtim 


13  VMIT  IMAM  STRHT 
WIISTIil.N.Y.  l4Sie 


'^ 


h 


'* 


S9 


JEBB'S   RESERVED   CASES. 


[May  31 


The  prisoner  was  convicted,  but  sentence  was  respited, 
until  the  opinion  of  the  Judges  should  be  known. 

The  Judges  were  unanimously  of  opinion,  that  the 
conviction  was  bad. 


[*60] 


THE  KING  V.  JOHN  WHITE  LARKIN. 


The  prisoner  was  convicted  upon  two  indictments,  one  for  shooting'  at  A.  with 
intent  to  kill  him,  and  the  other  for  shooting  at  B.  with  intent  to  kill  him;  the 
jury  finding  that  he  intended  to  kill  whichever  the  shot  should  strike,  but  not 
both :  Held  that  he  was  rightly  convictcri.  It  is  no  defence  to  such  an  indict- 
ment that  the  offence  was  committed  in  resistance  to  the  execution  of  a  Civil 
Bill  ejectiiiert  decree,  and  thut  no  affidavit  verifying  the  Civil  Bill  had  been 
lodged  with  the  Clerk  of  the  Peace. 

The  prisoner  was  indicted  under  the  EllenhorougJi 
Act,  43  Geo.  III.  c.  58  [a),  before  Bushe,  C.  J.,  at  the 
Spring  Assizes  at  Clonmel  in  1826,  upon  two  indict- 
ments; the  first  was  for  firing  a  shot  at  James  Jones, 
with  intent  to  murder  him.  The  second  was  for  firing 
a  shot  at  John  Canterell,  with  intent  to  murder  him. 
The  evidence  was,  that  Jo?ies  and  Canterell,  as  assistants 
to  a  bailiff  under  a  special  warrant  upon  a  decree  in  a 

(o)  Now  repealed;  but  the  1  Vict.  c.  85,  s.  3,  contains  nearly  similar  provisions. 


' 


V, 


1826.] 


REX  V.  LARKIN. 


the 


civil  bill  ejectment,  endeavoured  to  execute  the  warrant, 
and  were  resisted  by  the  prisoner,  who  fired  a  loaded 
pistol  at  them.  The  jury  found  him  guilty  upon  both 
indictments,  but  stated  to  the  Judge,  that  they  believed 
he  fired  at  both  Jones  and  Canterell  with  intent  to  kill 
whichever  of  the  two  the  shot  should  strike ;  but  that 
they  did  not  believe  he  intended  to  kill  both.  The 
learned  Chief  Justice  reserved  for  the  consideration  of 
the  Judges  the  question,  whether  the  convictions  were 
right.  A  written  argument  on  behalf  of  the  prisoner 
was  submitted  by  T.  B.  C.  Smith,  his  counsel,  to  the 
twelve  Judges;  in  which  he  referred  to  the  following 
authorities:  Esp.  Law  of  Actions  on  Statutes,  64; 
Gastineaux's  case{b);  Curtis  \.  the  Hundred  of  Godley{c); 
Rex  V.  Shepherd  {d);  Rex  v.  Austen  [e);  Rex  v.  Tay- 
lor {/);  Rex  V.  Empson{g);  1  East's  Cr.  L.  412;  Rex 
v.  DuJJin  and  Marshall  {h). 

*  Nine  Judges  (viz.  Lord  Norbury,  C.  J.  C.  [*61] 
Pleas,  O'Grady,  C.  B.,  M'Clelland,  B.,  Moore,  J., 
Jebb,  J.,  Burton,  J.,  Pennefather,  B.,  Vandeleur, 
J.,  and  Torrens,  J.,)  were  clearly  of  opinion  that  the 
convictions  were  right.  They  held  it  to  be  fully  estab- 
lished by  the  authorities  (a)  that  if  there  bo  malice 


m 


m 


JA 


V: 


\^i 


ih)  1  Leach,  417. 
(d)  1  Leach,  539. 
(/)  RusB.  &  Ry.  373. 
(A)  Russ.  &  Ry.  3G5. 
{a)  See  Rtx  v.  Baihy,  Russ.  &  Ry.  1 ;  Rex  v.  Hunt.  1  Mood.  C.  C.  93 ;  and  Rex 
V,  Gaitineaux,  1  Leach,  417. 


(c)  3  B.  &  C.  248. 
(«)  Ru&s.  &  Ry.  490. 
^g-)  1  Leach,  224., 


W 


Gl 


JEBB'S   RESERVED  CASES. 


[May  31 


against  one,  and  the  shot  he  fired  with  a  malicious 
intent  against  him,  and  it  should  strike  another  against 
whom  there  was  no  malice,  yet  the  offence  under  the 
act  is  complete ;  and  that  if  a  shot  be  fired  at  several, 
with  intent  to  kill  any  one  of  them  whom  the  shot  might 
strike,  the  law  infers  a  malicious  intent  against  any  one 
who  may  be  struck,  and  consequently  against  all  who 
may  be  struck;  and  that  it  is  quite  analogous  to  the  case 
of  murder,  where  under  such  circumstances  if  one  should 
be  killed,  though  there  was  no  malicious  design  against 
him  in  particular,  it  would  clearly  be  murder. 

Smith,  B.,  also  thought  the  conviction  good,  upon 
the  authorities,  though  but  for  the  authorities  he  would 
have  had  doubts. 

BusHE,  C.  J.,  thought  the  findings  were  contradictory. 

Johnson,  J.,  thought  the  convictions  bad.  He  con- 
sidered the  intent  to  be  a  question  for  the  jury,  and  that 
as  there  were  two  indictments,  one  stating  an  intent  to 
kill  Jonec,  and  the  other  an  intent  to  kill  Canterell,  the 
verdict  in  the  first  negatived  the  intent  laid  in  the  second 
indictment;  and  vice  versa,  the  verdict  in  the  second 
negatived  the  intent  laid  in  the  first. 

* 

[*62]  Another  point  was  reserved  in  this  case.  By 
the  statute  {a)  under  which  the  civil  bill  decree  was 


(«)  56  G.  III.  c.  88,  8.  7. 


1836] 


REX  V.  ROGAN. 


made,  it  is  required  that  an  affidavit  shall  be  made,  and 
lodged  with  the  Clerk  of  the  Peace,  verifying  the  con- 
tents of  the  civil  bili.  It  appeared  that  no  such  affidavit 
had  been  made,  and  it  was  contended  on  behalf  of  the 
prisoner,  that  the  decree  was  therefore  void,  the  warrant 
7oid,  the  officer  and  his  assistants  trespassers,  and  resis- 
tance justifiable.  But  the  Judges  were  all  clearly  of 
opinion  that  the  objection  was  unfounded,  for  that  the 
court  having  jurisdiction,  no  error  or  irregularity  in  the 
previous  proceedings  could  affect  a  warrant  legal  in  its 
frame. 


THE  KING  V.  ROGAN  and  Others. 


The  prisoner  was  convicted  on  an  indictment  purporting  to  be  for  highway  robbery, 
but  omitting  the  words  as  to  taking  from  the  person  of  the  prosecutor.  Held  tliat 
tliis  was  a  bad  conviction  for  highway  robbery,  but  good  for  larceny. 


i 


I! 


The  prisoners  were  convicted  before  Lord  Norbunj,  C. 
J.  C.  Pleas,  at  the  Meath  Summer  Assizes  in  1826,  upon 
the  following  indictment,  on  clear  evidence,  of  a  highway 
robbery.  "The  Jurors  for  our  Lord  the  King  upon 
"  their  oath  do  say  and  present  that  Richard  Rogan,  late 
"  of  Painstorvn,  in  the  county  of  Meath,  yeoman,  Michael 
"  Byrne,  late  of  the  same  place,  yeoman,  and  Bernard 
"  Rogers,  late  of  the  same  place,  yeoman,  on  the  tenth 


:  u 


t- < 


C3 


JEDB'S    RESERVED  CASES.  [November  15 

"  day  of  April,  in  the  seventh  year  of  the  reign  of  our 
"  Sovereign  Lord,  George  IV.,  at  Painstorvn  aforesaid, 
"  in  the  said  county,  in  and  upon  one  Joseph  Kelly,  in 
"  the  peace  of  God,  and  of  our  said  Lord  the  King,  then 
"  and  there  feloniously  did  make  an  assault,  and  him, 
"  the  said  Joseph  Kelly,  in  bodily  fear  and  danger  of  his 
"  [*63]  life  then  and  there  *  feloniously  did  put,  and 
"four  yards  of  blue  cloth,  each  yard  then  being  of  the 
"  value  of  ten  shillings,  six  pieces  of  bazil  skins,  each 
'•  piece  then  being  of  the  value  of  one  shilling,  and  three 
"  pieces  of  silver  coin,  of  the  current  coin  of  this  realm, 
"  called  half  crowns,  each  of  the  said  pieces  of  silver 
"  coin  then  being  of  the  value  of  two  shillings  and  six- 
•*  pence,  of  the  goods,  chattels,  and  monies  of  the  said 
"  Joseph  Kelly,  then  and  there  feloniously  and  violently 
"  did  steal,  take,  and  carry  away,  against  the  form  of 
"  the  stixtute  in  such  case  made  and  provided,  and  against 
"  the  peace  of  our  said  Lord  the  King,  his  crown  and 
"dignity." 


When  the  prisoners  were  brought  up  for  sentence, 
counsel  on  their  behalf  moved  in  arrest  of  judgment, 
upon  the  ground  of  certain  defects  and  errors  in  the 
indictment,  and  principally  because  it  wholly  omitted 
the  usual  words  of  taking  from  the  person  of  the  prose- 
cutor, from  whom  it  had  been  clearly  proved  in  evidence, 
that  the  goods,  &c.  laid  in  the  indictments,  were  taken, 
upon  the  highway  where  the  prisoners  had  assaulted 
him,  and  where  they  left  him  apparently  dead.    Coun- 


BH 


1836.] 


REX   V.   PKENDERGAST. 


63 


sel  at  both  sides  finally  agreed  that  the  learned  Chief 
Justice  should  consult  the  other  Judges  as  to  whether 
any  and  what  judgment  should  be  pronounced;  whether 
capital,  as  for  the  highway  robbery,  or  for  a  transport- 
able larceny.  There  was  no  doubt  as  to  the  facts  of  the 
case ;  fear,  bodily  danger,  and  violence,  had  been  proved. 

The  Twelve  Judges  unanimously  ruled,  that  this 
was  a  bad  conviction  for  highway  robbery,  but  a  good 
one  for  larceny. 

Sec  3  Russell  on  Crimes,  61,  Sharswood's  cd.  Fiiil.  1842. 


THE  KING  V.  JOHN  PRENDERGAST. 


[*64] 


Conviction  for  perjury  held  bad,  where  an  ohjcction  was  taken  in  arrest  of  judg- 
ment that  the  indictment  did  not  state  that  the  false  swearing  was  with  respect 
to  a  matter  essential  to  the  matter  in  issue ;  although  it  appeared  in  evidence  that 
it  was  so. 


The  prisoner  was  tried  before  Johnson,  J.,  at  the  Sum- 
mer Assizes  at  Kilkenny,  in  1826,  upon  the  following 
indictment :  *'  The  Jurors,  &c.  do  say  and  present  that 
•*  John  Prendergast,  late  of  &c.,  on  &c.,  at  a  general 
"  Quarter  Sessions  of  the  peace,  holden  at  Thomastown, 
"  in  and  for  the  County  of  Kilkenny,  on  &c.,  before  G. 
"P.  Bushe,  Esq.,  assistant  barrister  of  and  for  said 
11 


it 


I,;  • 


I '    MT. 

<''  mm 

64 


JEBO'S  RESERVED  CASKS. 


[Nuvciiibcr  15 


County,  and  one  of  the  Justices,  &c.  for  the  said 
County  of  Kilkenny,  and  duly  appointed  to  hear  and 
determine  matters  by  civil  bill  between  party  and 
party,  and  then  and  there  having  sufficient  and  com- 
petent power  and  authority  to  administer  an  oath  in 
such  behalf,  was  produced  as  a  witness  on  the  part  and 
behalf  of  William  Prendergast  and  Jeremiah  Maker, 
upon  thi)  trial  of  a  civil  bill  brought  by  one  Bridget 
Burke  against  the  said  William  Prendergast  and  Jere- 
miah Maker,  and  that  the  said  John  Prendergast  was 
then  and  there  in  due  form  of  law  sworn  before  the 
said  G.  P.  Bushe  (he  having  sufficient  and  competent 
power  and  authority  to  administer  an  oath  to  the  said 
John  Prendergast  in  that  behalf),  to  speak  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  touching 
the  matter  then  at  issue  between  the  said  Bridget 
Burke  and  the  said  William  Prendergast  and  Jeremiah 
Maher;  and  that  the  said  John  Prendergast,  not  having 
the  fear  of  God  before  his  eyes,  &.C.,  did  then  and  there 
upon  his  corporal  oath  aforesaid,  in  his  examination 
aforesaid  before  the  said  G.  P.  Bushe  (he  then  and 
there  having  sufficient  and  competent  authority  to 
administer  the  said  oath),  wickedly,  wilfully,  &c.,  say, 
[*65]  depose,  and  swear,  *  amongst  other  things,  in 
substance  and  to  the  effijct  following,  thai  is  to  say : — 
that  he  the  said  John  Prendergast  saw  a  certain  lease 
or  written  document  purporting  to  be  a  lease,  which 
was  produced  upon  the  hearing  of  the  said  issue, 
signed  and  executed  by  one  Sylrester  Dooly,  as  lessor, 


18->6.1 


REX    V.   PRENDERGAST. 


M 


"  and  by  Patrick  Prendergast  and  William  Prendergast, 
"  as  lessees;  and  that  he  also  saw  the  said  lease  signed 
"  by  J.  Barry,  D.  Barry,  and  J.  Heron,  as  witnesses  to 
"the  execution  thereof  by  the  said  parties  thereto; 
"  whereas,  in  truth  and  in  fact,  the  said  John  Prender- 
*^gast  did  not  see,  &c.;  and  so  the  Jurors  aforesaid  do 
"say  and  present  that  the  said  John  Prendergast  on, 
"  &c.,  before  the  said  G.  P.  Bushe  (he  then  and  there 
"having  sufficient  power  and  authority  to  administer 
"  the  said  oath  to  the  said  John  Prendergast  in  that  be- 
"  half),  in  manner  and  form  aforesaid,  did  then  and  there 
"wilfully,  wickedly,  &c.,  commit  wilful  and  corrupt 
"  perjury,"  &c.  The  false  swearing  was  fully  and 
sufficiently  proved,  and  the  prisoner  was  convicted. 


It  was  moved  in  arrest  of  judgment,  that  the  indict- 
ment was  bad,  because  it  was  not  stated  therein  that  the 
matter  as  to  which  the  prisoner  was  interrogated  was 
material  to  the  matter  then  in  issue.  It  fully  appeared 
in  evidence  upon  the  trial,  that  the  matter  as  to  which 
the  perjury  was  assigned,  was  material  to  the  issue  on 
the  trial  of  which  the  purjury  was  alleged  to  be  com- 
mitted. The  learned  Judge  respited  sentence,  and 
reserved  the  point  for  the  consideration  of  the  Judges. 

The  Twelve  Judges  unanimously  ruled,  that  this 
was  a  bad  indictment,  and  that  the  conviction  was 
wrong. 

See  post,  TIte  King  v.  Tierney,  179. 


I 


r 


i\: 


•66 


JEBO'S   RESERVED  CASES.  [November  30 


*  THE  KING  V.  CHARLES  DOGIIERTY. 


A  conviction  for  manslaughter  is  sustainable,  altliougli  there  has  been  no  Coroner's 
inquest,  or  examination  of  tlie  body,  or  evidence  of  medical  witncHseN,  os  to  the 
cause  of  dcoth;  it  being  sutHcient  if  tlie  cause  of  death  be  proved  by  circum- 
stantial evidence. 


;i!|h  ■ 


The  prisoner  was  tried  before  Moore,  J.,  at  the  Summer 
Assizes  for  the  County  of  Down,  in  182G,  for  the  mur- 
der of  Mary  Cummings,  by  casting  and  throwing  her 
against  the  ground,  and  with  his  hands  and  feet  giving 
her  divers  mortal  bruises  on  her  head,  stomach,  back, 
and  sides.  The  evidence  was,  that  the  prisoner  had 
been  seen  on  a  public  road  to  kick  or  strike  the  woman 
down;  that  she  got  up  immediately  afterwards,  and 
they  went  together  to  a  public  house,  where  she  com- 
plained of  being  sick  and  tired  with  travelling.  That 
they  left  this  house  together,  and  half  an  hour  afterwards 
the  woman  was  found  lying  in  a  ditch,  her  face  and 
temples  covered  with  bruises,  and  her  eyes  blackened. 
The  prisoner  was  standing  on  the  side  of  the  ditch,  and 
he  was  taken  into  custody.  The  woman  was  removed 
into  a  neighbouring  house,  where  she  died  in  about  five 
minutes  after  her  arrival.  Her  cloak  and  bonnet  were 
found  in  the  field  adjoining  the  ditch,  and  there  were 
marks  among  the  bushes  and  along  the  road  as  if  some- 
thing had  been  dragged  across  them  into  the  ditch. 
The  prisoner  confessed  that  the  bruises  which  appeared 


i'iii! 


30 


182C. 


RHX   V.   KINSLEY. 


66 


upon  the  woman  had  been  inflicted  by  him.  There 
was  no  Coroner's  inquest,  nor  was  the  body  examined 
at  all;  nor  was  there  any  evidence  of  any  medical  or 
other  person  to  prove  that  her  death  was  in  consequence 
of  the  injuries  which  caused  the  external  appearances 
in  question ;  and  the  Jury  having  found  the  prisoner 
guilty  of  manslaugliter,  the  learned  Judge  respited  the 
sentence  in  order  to  obtain  the  opinion  of  the  Judges, 
as  to  whether  the  verdict  of  manslaughter  could  be 
sustained,  where  no  such  evidence  with  respect  to  the 
cause  of  death  had  been  produced. 


:!' 


\i.    F  , ; 


,;  111 


*  Nine  Judges,  (Lord  Norhury,  C.  J.  C.  [*67] 
Pleas,  0' Grady,  C.  B.,  and  Smith,  B.,  being  absent,) 
unanimously  held  that  the  conviction  was  right. 


THE  KING  V.  MOSES  KINSLEY. 

Parol  evidence  of  a  confession  licld  to  be  admissible,  it  being  proved  that  tlic  con- 
fession was  not  taken  down  in  writing  whilst  the  prisoner  was  before  the  magis> 
irate;  although  tlicre  was  no  proof  that  it  had  not  been  put  into  writing  within 
two  days,  under  10  Car.  1,  Scss.  2.  c.  18. 

The  following   report  was  submitted   by  Sir  Jonas 
Greene,  Recorder  of  Dublin,  to  the  Twelve  Judges : 


"  Moses  Kinsley  was  recently  convicted  before  me  at 
the  Court  of  Quarter  Sessions  and  Gaol  Delivery  for 


lii 


«T 


Jl'.UU'rt   KGHURVUI)  CASLS, 


I  Iirc(3iiit>or  17 


n 


1 1 

¥'1  I 


the  City  of  Dublin,  of  griiud  larceny,  in  liuving  felo- 
niously stolon  six  plates,  of  the  value  of  two  shillings 
each,  of  the  goods  of  T/tamas  Ellis,  Esfj.  1  permitted 
Master  Ellis  to  give  parol  evidence  of  a  confession  made 
by  the  prisoner  before  Alderman  Darley ;  and  I  have 
thought  it  my  duty,  in  consequence  of  the  extensive  ap- 
plication of  the  principle  involved,  to  reserve  for  their 
Lordships,  the  Judges,  the  question,  whether,  under 
the  circumstances  hereafter  stated,  such  evidence  was 
legally  admissible. 

*'  The  prisoner  was  brought,  in  the  usual  course  of 
proceeding,  for  examination  before  the  Alderman,  who 
explicitly  and  repeatedly  warned  him  against  saying 
any  thing  which  had  a  tendency  to  criminate  himself. 
Questions  were  put  to  him  thereupon,  some  by  Master 
Ellis  himself,  but  in  the  presence,  and  under  the  sanc- 
tion of  the  magistrate ;  after  the  lapse  of  a  little  time, 
the  prisoner  said  there  was  no  use  in  denying  the  charge, 
and  proceeded  to  state,  in  detail,  the  particulars  of  his 
offence.  Master  Ellis,  who  was  the  only  witness  ex- 
[*68]  amined  to  prove  *  the  confession,  before  I  allowed 
him  to  give  parol  testimony  of  the  prisoner's  declara- 
tions, was  asked  by  me  whether  they  had  been  taken 
down  in  writing;  his  answer  was,  that  they  had  not: 
an  objection  however  was  made  on  behalf  of  the  prisoner, 
that  they  ought  to  have  been  reduced  to  writing  after 
Master  Ellis  had  gone  away  from  the  office,  and  the 
question  being  asked  of  him,  he  said  he  remained  in  the 


ken 

I  not: 

)ner, 

ifter 

the 

h  t\ie 


l»i(!.] 


Ki:X   »    KINSLLIV. 


r>8 


office  for  some  lime  after  the  prisoner  was  rcmoveil, 
(luring  which  period  no  such  occurrence  hud  taken 
place;  but  that  ho  could  not  statu  what  might  have 
iiappcnod  after  he  had  withdrawn.  The  force  of  the 
objection  would  seem  to  depend  upon  the  10  Car.  1, 
Sess.  2,  c.  18,  s.  3  (vol.  2  of  statutes  at  large,  page  77), 
by  which  Justices  are  directed,  before  they  commit  in 
cases  of  felony,  &c.,  to  take  the  examination  of  the  pri- 
soner, and  the  information  of  them  that  bring  him,  and 
the  same,  or  so  much  as  is  material  to  prove  the  felony, 
to  put  in  writing,  within  two  days  after  the  examina- 
tion (a) ;  and  the  objection  itself  appears  to  amount  sub- 
stantially to  this,  that  the  magistrate  himself  should  bo 
produced  to  negative  the  presumption,  that  the  exami- 
nation had,  within  the  period  pointed  out  by  the  act, 
been  reduced  into  writing.  I  have  been  informed,  that 
two  of  the  learned  Judges,  who  presided  some  time  since 
at  an  adjournment  of  tho  Commission  Court,  accord- 
ingly so  ruled,  but  I  am  not  apprized  of  the  particular  cir- 
cumstances of  that  case :  it  may  have  been,  that  upon  the 
objection  being  taken,  and  a  suggestion  by  the  Court,  that 
it  seemed  to  be  a  serious  one,  the  evidence  was  waived 
on  the  part  of  the  Crown,  as  not  necessary,  perhaps,  to 
*  the  attainment  of  justice;  for  which  reason,  and  [*69] 
as  I  know  that  a  great  number  of  convictions  have  taken 
:he  Commission  but  else  w  he 


pi 


only 


upon 


(a)  Tliis  Act  has  been  re|)ealcd  by  tlie  9  O,  4,  c.  5.3,  s.  1.  Rut  its  provi^iions 
}iave  been  rc-cuactcd  by  the  9  G.  4,  c.  54,  s.  3,  with  the  exception,  that  tite  limit  of 
two  dnyx  lias  been  omitted. 


i  '1 


I'  1 


':k 

W 

1       1 

\          i< 

■   '      'f 

1 

[ 

1 

if 

il 

I  : 

JEBB'S  RESERVED  CASES. 


[December  17 


the  kind  of  evidence  which  I  suffered  in  the  present 
instance  to  go  to  the  jury,  I  feel  it  of  public  importance 
that  the  question  should  be  settled  by  the  highest  crimi- 
nal authority  in  the  country. 


P 


ll  !. 


"  The  cases  principally  bearing  upon  the  subject  will, 
I  apprehend,  be  found  to  be  the  King  v.  Jacobs,  1  Leach, 
309;  and  the  King  v.  Lambe,  2  Leach,  552;  from  which 
the  rule  seems  to  be  satisfactorily  established,  that  if  the 
fact  upon  the  evidence  stands  indifferent,  whether  the 
confession  was  reduced  into  writing  or  not,  the  Court 
will  presume  it  was  (such  being  the  Justice's  duty),  and 
reject  the  parol  testimony.  I  am  not  aware  of  any 
reported  case  applying  in  terms  this  presumption  (of 
being  reduced  into  writing)  beyond  the  period  of  the 
actual  examination  of  the  prisoner,  when  by  being 
present  he  would  have  an  opportunity  of  rectifying 
errors  or  omissions,  perhaps,  indeed,  of  repudiating  the 
confession  altogether,  on  the  principle  of  incorrectness. 
Under  the  statute,  it  is  the  duty  of  the  magistrate  to 
return  to  the  next  Gaol  Delivery  the  examination,  if,  in 
point  of  fact,  it  was  taken  down  in  writing;  no  exami- 
nation was  returned  to  the  Court  in  the  case  before  me. 
However,  it  is  perfectly  clear,  that  the  presumption  that 
the  magistrate  would  do  his  duty  by  returning  the 
examination  in  writing,  if  there  had  been  one,  is  not 
allowed  to  apply  so  as  to  let  in  parol  evidence  of  the 
prisoner's  confession,  where  the  fact  upon  the  evidence 
stands  indifferent,  whether  the  examination  at  the  time 


ft 


the 

ness. 

e  to 

if,  in 

ami- 

me. 

that 
the 
3  not 
f  the 
lence 

time 


18i2C.I 


REX   v.   KINSLEY, 


6'J 

Whe- 


of  takiii;?  it  was  or  was  not  reduced  into  writing 
ther,  however,  tlie  presuinption  he  equally  *  inap-  [*70] 
plicahle  in  a  case  which  supposes  the  reduction  to  writ- 
ing to  he  alter  the  examination,  and  after  the  prisoner's 
retirement  from  the  office,  may,  perhaps,  admit  of  a  dif- 
ferent consideration. 

"  Our  statute  of  Charles  is,  in  the  particulars  cited,  a 
transcript  of  the  Act  of  the  English  Act  2  &  3  Ph.  &,  M. 
c.  10.  Mr.  Peers  Act  of  last  Session,  for  improving  the 
Administration  of  Criminal  Justice  in  England  {a),  has 
repealed  the  Act  of  Philip  and  Mary;  it  has  re-enacted 
however  (amongst  others)  the  provision  in  question, 
omitting  the  words  "  within  two  days  after  the  exami- 
tion"  (^>).  Mr.  Justice  Grose,  upon  delivering  his  judg- 
ment in  Lambe's  Case  (c),  adverts  to  a  decision  of  the 
Judges  in  the  King  v.  Hall  and  others,  in  the  words  fol- 
lowing (</): — 'At  the  Lent  Assizes  for  the  County  of 
'  Stafford,  in  the  year  1790,  one  Hall  and  two  others 
'  were  tried  and  convicted  on  an  indictment  for  burglary : 
*  the  evidence  was  clear  against  the  two  others,  but  ex- 
'cepting  one  or  two  slight  circumstances,  certainly  not 
'sufficient  of  themselves  to  have  put  Hall  upon  his 
'defence;  the  only  evidence  against  him  was  his  exami- 
'  nation  before  the  magistrate,  which  was  not  taken  in 


(.?)  7  G.  4,  c.  G4.  (2  Russ.  on  Cr.  730,  ShiirBwoDil's  cd.  Tliil.  1811.) 
{h)  The  same  ultcratioa  has  btcii  made  in  tliu  liisU  enactment,  vide  ante,  p.  GS, 
note. 
(c)  2  Leach,  552.  (rf)  P.  559. 

12 


m  1 

'  1 

5^     , 

•.■ill 

i  ■    .  - 

^  m 


4 


70 


JEBB'S   RESERVED  CASES. 


[December  17 


,  f  I 


H' 


*  writing,  either  by  the  magistrate  or  any  other  person, 

*  but  was  proved  by  the  viva  voce  testimony  of  two  wit- 

*  nesses  who  were  present,  and  which  amounted  to  a  full 
'  confession  of  his  guilt.    The  case  was  saved  and  re- 

*  ferred  to  the  consideration  of  the  Judges,  whether  this 

*  evidence  of  the  confession  was  well  received,  and  the 
<  [*71]  *  prisoner  legally  convicted;  and  all  the  Judges, 
'  except  Mr.  Justice  Gould,  were  of  opinion,  that  the 

*  conviction  was  right.'  It  would  seem,  that  neither  the 
magistrate  was  produced  in  this  case,  nor  his  absence 
accounted  for  by  death  or  otherwise. 

"  I  pronounced  no  judgment  upon  the  verdict,  and 
entered  on  the  crown  book  a  curia  advisari  vult" 

It  was  held  unanimously  by  Ten  Jt^dges  ( 0'  Grady, 
C.  B.,  and  Smith,  B.,  being  absent)  that  the  conviction 
was  right. 


M' 


1827.1 


BURNING   PEriTION,   GALWAY. 


71 


1^ 


In  the  Matter  of  a  PRESENTMENT  made  by  the  Grand  Jury 
of  the  Co.  of  GALWAY,  to  WALTER  BLAKE,  Esq. 


The  owner  of  a  yacht  is  'lOt  entitled  to  compensation  for  the  malicious  burning  of 
it,  under  the  19  &  20  G.  3,  c.  37. 


^;»ii-'^^l 


The  following  presentment  was  made  by  the  Grand 
Jury  of  the  County  of  Galway,  at  the  Summer  Assizes 
in  1826. 

"  County  of  Galwaij  to  wit. — We  present  the  sum  of 
"£465  ll5.  8d,  Irish  currency,  to  be  levied  off  the 
"  County  of  Galway  at  large,  and  paid  to  the  Treasurer, 
"  and  by  him  to  Walter  Blake,  Esq.,  to  compensate  him 
"  for  a  malicious  burning.        For  self  and  fellows, 

''DUNLO,  Foreman." 

Mr.  Blalie^s  petition  was  for  "  setting  fire  to  and  con- 
"  suming  his  yacht  or  pleasure  boat,  which  lay  in  the 
"  harbour  of  Oranmore,  in  the  Barony  of  Dimkellin.^' 
Counsel  in  support  of  the .  presentment  referred  to  the 
*  29  Geo.  n.  c.  12;  19  &  20  Geo.  III.  c.  37;  and  [*72] 
4  Geo.  IV.  c.  73.  The  presentment  was  respited  by 
Smith,  B.,  the  Judge  of  Assize,  who  reserved  for  the 
consideration  of  the  Twelve  Judges  the  question, 
whether  a  presentment  for  such  an  injury  was  war- 
ranted under  the  statutes  referred  to. 


■I 


73 


JEBB'S    RESERVED   CASES. 


[May  5 


Eight  Judges  (Bushe,  C.  J.,  Smith,  B.,  M'CkUand, 
B.,  and  Vandelenr,  J.,  bein<^  absent),  unanimously  gave 
their  opinion  against  the  presentment;  holding  the  words 
"articles  and  effects"  in  the  19  &  2(VGeo.  III.  c.  37,  to 
be  ejusdem  generis  with  those  which  went  before  {a). 


\\ 


(a)  Compcnsntion  fijr  malicious  injuries  in  any  County  but  the  County  of  Dublin 
is  now  provided  for  liy  tlic  (i  &  7  W,  4.  c.  IK!,  s.  135  (and  scmlile  by  the  3  &.  4 
W.  4.  c.  78,  s.  70,  wliich  section  would  ap|icar  to  be  still  in  force  as  far  as  relates 
to  the  petition  to  the  Judge  of  Assize);  and  in  the  County  of  Dublin,  by  the  above- 
mentioned  Act  of  19  &,  20  G.  3.  c.  37.  See  Clmmley's  ca^e,  1  Jebb  &,  S.  31!).  The 
County  of  the  Citij  nf  Dublin  is  not  included  in  the  operation  of  the  19  and  20  G. 
3.  c.  37;  Millar's  case,  2  Jebb  &.  S.  271 ;  and  it  is  expri'ssly  excluded  from  that  of 
the  6  and  7  W.  4.  c.  110.  IJut  n  bill  lias  been  brought  into  Parliament  (Session 
1841)  to  extend  the  19  &  20  G.  3.  c.  37  to  the  County  of  the  City  of  Dublin.— 
(This  bill  has  now,  February,  1842,  become  a  law,  4  Vic.  c.  10,  Am.  cd.)  See  tlio 
case  of  the  County  Curlow  I' resentment  for  a  malicious  burning,  ;>ost. 


m 


il 


THE  KING  V.  PHILIP  JONES  and  Oihers. 


The  informations,  warrant  of  committal,  and  indictment,  stated  an  offence  committed 
on  Monday  the  12lli.  In  the  course  of  the  trial  it  became  necessary  to  fix  the 
precise  date  of  the  offence,  which  was  proved  to  be  Monday  the  5th.  Held,  that 
a  conviction  under  these  circumstances  was  legal. 


\a' 


The  prisoners  were  tried  before  Bushe,  C.  J.,  at  the 
Spring  Assizes  for  the  King's  County,  in  1827,  upon  a 
charge  of  burglary  and  stealing  from  the  dwelling-house, 
and  convicted  upon  satisfactory  evidence;  but  during 
the  progress  of  the  trial  a  circumstance  was  disclosed 


1827.] 


REX   V.   JONES. 


79 


la 

g 

Id 


upon  which  the  prisoner's  counsel  insisted  as  rendering 
any  conviction  *  illegal.  In  summing  up  the  case  [*73] 
to  the  jury,  the  leirned  Judge  told  them  that  the  cir- 
cumstance insisted  upon  ought  to  make  them  the  more 
cautious  in  considering  tlieir  verdict;  and  after  their 
verdict  he  reserved  for  the  consideration  of  the  Judges 
the  question,  whether  it  affected  in  any  manner  the 
legality  of  the  verdict.  The  point  was  as  follows : — 
The  crime  was  committed  on  Monday  the  5th  of  March, 
1827,  and  on  Tuesday  the  13th  the  prosecutors,  who 
were  persons  in  the  lower  class  of  life,  went  before  Mr. 
Dames,  a  magistrate,  and  described  to  him  the  trans- 
action as  having  occurred  on  the  last  Monday,  by  which 
he  in  mistake  understood  Monday  the  12lh,  and  accord- 
ingly he,  on  the  16th  of  March,  drew  up,  in  his  own 
handwriting,  informations  for  the  prosecutors,  describing 
the  transaction  as  having  occurred  on  Monday  the  12th, 
to  which  they  swore;  and  he  committed  the  prisoners  on 
that  day  by  a  committal  in  the  following  words : — "  You 
"  are  hereby  required  to  detain  in  your  custody  the  body 
"  oi  Philip  Jones,  &c.,  who  stand  charged  before  me  upon 
"oath  for  burglariously  entering  the  house  of  Denis 
"  Connor,  on  the  night  of  the  12th  of  March,  1827,  and 
"  them  safely  to  keep  until  legally  discharged ;  and  for 
"  so  doing  this  shall  be  your  warrant. — Sealed  and  dated 
«'  this  16th  day  of  March,  1827. 

"F.  L.  DAMES." 
"  To  the  Keeper  of  His  Majesty's 
"  Prison  at  Philipstown." 


::  m 


i' 


« : 


If 


73 


JEBU'S    RESERVED   CASES. 


[May  5 


Upon  the  informations  returned  to  the  Crown  Office, 
the  Clerk  of  the  Crown  framed  indictments,  stating  the 
offence  to  have  been  committed  on  the  12th  instant, 
upon  which  indictments  the  prisoners  were  tried.  In 
the  progress  of  the  evidence  it  became  material  to  fix 
the  precise  day  upon  which  the  crime  was  committed ; 
[*74]  which  being  ascertained  *to  be  the  5th,  the 
prisoners'  counsel  produced  and  proved  the  committal, 
and  insisted  that  the  prisoners,  five  of  whom  it  appeared 
lived  four  or  five  miles  from  where  the  offence  was  com- 
mitted, and  who  were  not  arrested  until  the  16th,  had 
been  taken  by  surprise,  and  were  induced  to  shape  their 
defence  by  bringing  to  the  Assizes  many  witnesses  to 
account  for  them  upon  the  12th,  which  witnesses  had 
now  become  unnecessary ;  and  one  of  several  witnesses 
who  had  been  produced  for  another  purpose,  (viz.  that 
of  discrediting  the  witnesses  for  the  prosecution),  swore 
that  she  had  come  fully  prepared  to  prove  on  the  part  of 
some  of  the  prisoners,  that  on  the  night  of  the  12th,  they 
were  employed  in  such  a  manner,  and  at  such  a  time, 
as  to  make  it  impossible  for  them  to  have  been  present 
at  the  commission  of  the  offence. 

The  prisoners  were  sentenced  to  be  executed  on  the 
12th  of  May,  1827,  unless  the  Judges  should  be  of  opi- 
nion that  the  conviction  was  bad. 

It  was  the  unanimous  opinion  of  Eight  Judges 


U^imt». 


1827.] 


REX   V.  MARA. 


{G' Grady,  C.  B.,  Smith,  B.,  Jchh,  J.,  and  Torrens,  J., 
being  absent),  that  the  conviction  was  right. 


See  Rex  V.   Treharne,  2d  Moo.  2!)8;   and  Roscoc's  Crim.  Evidence,  101— tit. 
Aver7nenls  aa  to  time — Siiurswoud'ti  cd.  Pliil.  1810. 


I       1 


THE  KING  V.  JOHN  MARA  and  PATRICK  MUL-  [*75] 

LOWNEY. 


n  the 
opi- 

rOGES 


Evidence  of  the  prisoner's  handwriting'  by  a  witness  who  had  never  seen  him 
write,  but  who  swore  ho  was  enabled  to  form  a  belief  from  op]iortunitie8  which 
he  had  hud  of  knowing  his  liandwriting,  independently  of  comparison :  Held 
sufficient,  without  any  other  evidence  that  the  prisoner  linew  how  to  write. 


The  prisoners  were  tried  before  Bnshe,  C.  J„  at  the 
Spring  Assizes  for  the  King's  County,  in  1S27,  upon 
indictments  for  burglary  and  robbery  in  the  dwelling 
house  of  W.  P.  Vaiighan,  Esq.,  on  the  11th  of  Decem- 
ber, 1826.  MuUowney  was  acquitted,  and  Mara  was 
iound  guilty.  Part  of  the  evidence  against  Mara  was 
a  paper  proved  to  be  in  his  handwriting,  which  the 
jailor's  assistant  had  found  shortly  after  the  committal 
of  the  prisoners,  tied  round  a  turf  with  a  string,  in  the 
window  of  a  room  in  which  he  and  many  other  prisoners 
were  confined,  and  which  was  exactly  over  another  room 
in  which  Mullorvnetj  was  confined  with  other  prisoners, 
and  which  had  a  window  under  that  in  which  the  paper 


1i  •+!  • 


Il^ 


!  I 

i 


1 : ; 


75  JEHU'S   REHERVED  CASES.  [Miiy  5 

was  found.  The  jailor  had  orders  to  keep  these  two 
prisoners  separate,  and  the  paper  purported  to  be  a 
communication  from  Mara  to  Mullowtiey,  and  contained 
allusions  to  the  robbery,  and  to  their  defence  on  their 
trial;  which  made  it  a  material  part  of  the  evidence 
against  Mara,  which  was  altogether  circumstantial. 
The  prisoner's  counsel  objected  to  the  evidence  upon 
which  the  learned  Chief  Justice  allowed  the  paper  to 
be  proved  to  be  in  the  handwriting  of  the  prisoner,  and 
which  was  as  follows: — Mr.  Vaughan,  the  prosecutor, 
admitted  that  he  had  never  seen  the  prisoner  write,  but 
swore  that  he  had  opportunities  of  knowing  his  writing, 
which  enabled  him  to  form  a  belief  about  it.  Those 
opportunities  were  derived  from  the  following  circum- 
stances : — The  prisoner  had  engaged  with  him  as  his 
[*76]  *  herd,  in  December,  1825,  at  which  time  the  wit- 
ness's steward  brought  to  him  a  paper  containing  the 
terms  and  conditions  of  the  engagement,  in  the  steward's 
handwriting,  and  signed  in  another  handwriting,  with 
the  prisoner's  name,  as  agreeing  to  these  terms;  and 
Mr.  Vaughan  swore  that  such  was  his  usual  course  of 
hiring  such  servants,  and  that  the  prisoner  continued 
to  live  with  him  as  herd  upon  the  terms  stipulated  in 
that  paper,  until  the  12th  of  August,  1826,  when  the 
prisoner  handed  to  the  witness  two  papers,  the  first  of 
which  purported  to  be  a  notice  by  the  prisoner  that  he 
would  leave  Mr.  Vaughan^s  service,  and  the  second 
contained  an  account  of  what  was  due  to  him  under  the 
agreement,  and  a  demand  of  payment.    Mr.  Vaughan 


(I  ■ 


1827.] 


REX   e.   MARA. 


76 


swore  that  he  settled  accounts  with  him  accordingly, 
and  discharged  him;  he  proved  tho.se  pepers,  and  swore 
that  he  was  enabled  (independently  of  comparison  of 
handwriting),  from  those  opportunities  to  form  a  belief 
on  oath  as  to  the  prisoner's  handwriting,  and  that  upon 
first  seeing  the  paper  Oiiered  in  evidence,  ho  did  form  a 
belief  upon  it  without  making  any  comparison  of  hand- 
writing, and  believed  it  to  be  the  prisoner's  handwriting. 
The  papers  produced  by  Mr.  Vaiighan,  which  he 
received  from  the  prisoner,  were  as  follows: — "Sir,  I 
"  beg  leave  to  let  you  know  that  it  is  not  my  conveni- 
"  ence  to  stop  in  Golden  Grove  any  longer  as  herd,  on 
"the  terms  you  offer;  therefore  I  give  you  notice  to 
"  provide  a  herd  in  my  place  as  soon  as  you  possibly 
"  can.    I  remain  your  obedient  servant, 

"/o/tw  MaraP 


r 

II 

f 

1 

!| 

% 

k  V 


"  John  Mara,  and  his  man,  commenced  herd  in  Golden 
"  Grove,  for  Captain  Vaughan,  the  16th  of  December, 
"  *  1825,  and  continued  to  the  16th  of  August,  [*77] 
"  1826,  which  amounts  to 

"  242  days  at  lOdf.  per  day,    ..£1018 
"  Do.    his  man,        do.  .    .        10    1     8 


£20     3     4 


"  The  amount  of  this  I  expect  you  will  pay  me,  as  you 
"  did  not  fulfil  your  agreement  with  me.     I  will  give 
"  up  the  half  acre  of  Bealor,  if  you  will  allow  me  for  my 
13 


»;('' 


$  . 


77 


JEDB'S   RESERVED   CASES. 


[Mays 


hi:- 
h 


h 


•>% 


I 

h 


"  seed  and  labour,  or  I  will  pay  the  value  thereof. — 12th 
"  August,  1826." 

Upon  tuis  evidence  the  learned  Chief  Justice  allowed 
the  paper  in  question  to  be  read.  The  prisoner's  coun- 
sel insisted,  among  other  objections,  that  evidence  ought 
to  have  been  given  to  show  that  the  prisoner  knew  how 
to  write.  The  jury  found  the  prisoner  guilty,  and  he 
was  sentenced  to  be  executed  on  the  12th  of  May,  unless 
the  conviction  should  be  held  to  be  bad,  upon  a  question 
reserved  for  the  consideration  of  the  Judges,  as  to  the 
sufficiency  of  the  evidence  of  handwriting. 

It  was  the  unanimous  opinion  of  Eight  Judges 
{0' Grady f  C.  B.,  Smith,  B.,  Jebb,  J.,  and  Torrens,  J., 
being  absent),  that  the  conviction  was  right. 

Sec  2d  RuBsell  on  Crimes,  727,  and  Mr.  Sharswood's  notes,  Phil.  1841. 


1837.1 


REX  V.  CARROLL. 


78» 


*TIIE  KING  V,  MICHAEL  CARROLL. 


Evidence  to  Rupport  nn  indictment  under  tlio  Whitcboy  Act.  It  is  not  ncccmiary 
to  prove,  by  distinct  evidence,  that  the  country  was  in  a  Btato  of  disturbance,  if 
tlio  crime  itself  be  clcurly  a  WJiitcboy  offence;  as  tlio  circumstances  attending 
it  may  demonstrate  tlio  country  to  be  in  such  a  state. 


The  prisoner  was  tried  before  Torrens,  J.,  at  the  Spring 
Assizes  for  the  County  of  Clare,  in  1827,  on  two  indict- 
ments. The  first  was  under  the  Whiteboy  Act  (a),  for 
assaulting  the  habitation  of  Edward  Synge,  Esq.,  on 
the  19th  of  July,  1826.  There  was  a  second  count  for 
injuring  the  habitation  of  the  said  Edward  Synge. 
The  second  indictment  was  under  Lord  ElkiihorouglC s 
Act  (J),  for  assaulting  the  said  Edward  Synge,  and 
being  feloniously  present,  aiding  and  assisting  an  un- 
known person  to  shoot  at  the  said  Edroard  Synge,  with 
intent  to  murder  him ;  and  there  were  two  other  counts 
laying  the  offence  with  an  intent  to  maim  and  disable 
the  prosecutor. 


U'  .tt; 


The  first  witness  was  Edward  Synge,  Esq.  He 
stated,  that  he  lived  at  Carhire,  in  the  County  of  Clare ; 
was  there  on  Wednesday  the  19th  of  July;  there  were 


(a)  15  &  16  G.  3.  0. 21,  s.  4.  Tliis  Act  has  been  amended  in  some  particulars 
(not  aifccting  the  present  question),  by  the  1  &  2  W.  4.  c.  44. 

(&)  4.*)  G.  3.  c.  58,  now  repealed.  The  1  Vict  c.  85,  s.  4,  is  the  corresponding 
enactment  now  in  force. 


ii 


n 


JEOn'S  RESERVED  CASES. 


[Mays 


H 


i;!^ 


himself,  three  maids,  and  one  man  servant,  M.  Byrne, 
in  the  house;  he  was  in  bed,  and  was  disturbed  by  a 
violent  knocking  and  shouting,  and  firing  of  arms;  tiie 
knocking  was  at  tlie  hall  door,  about  two  o'clock  in  the 
morning,  and  sounded  like  persons  kicking  against  it ; 
witness  threw  up  the  window  of  the  room  where  he 
slept,  and  saw  some  figures  at  the  end,  and  a  little  in 
front  of  the  house ;  he  heard  several  threatening  sounds, 
such  as  " bloody  Antichrist  schools,"  and  "come  down;" 
a  voice  called  to  him  to  put  in  his  head,  or  he  would 
[*79]  blow  out  his  brains ;  witness  said  he  *  would  not, 
but  afterwards  did ;  there  was  then  a  shot  fired ;  he  took 
up  a  poker,  and  went  down  stairs,  followed  by  M.  Byrne; 
he  could  not  open  the  hall  door,  so  he  went  out  of  the 
window,  followed  by  Byrne;  heard  voices  say,  "they 
"  are  coming;"  he  then  ran  to  the  end  of  the  house,  and 
found  the  prisoner  at  the  wall ;  the  prisoner  had  a  gun 
with  him,  but  not  pointed  at  witness ;  witness  struck 
him  with  the  poker,  either  once  or  twice;  the  prisoner 
was  knocked  down ;  witness  did  not  know  then  whether 
he  was  killed ;  he  then  returned  into  the  dwelling-house ; 
and  then  went  out  again,  and  met  some  persons  coming 
towards  the  yard;  there  might  be  three  persons;  he 
grappled  with  one  of  the  persons,  who  had  presented  a 
gun  at  h'm,  and  struggled;  the  gun  was  presented  and 
snapped,  and  whilst  struggling  with  him,  witness  was 
struclc  by  his  servant,  by  mistake,  on  the  elbow,  whilst 
he  had  his  arm  round  the  man's  neck;  witness  fell  from 
his  servant's  blow  on  his  elbow;  fell  at  the  man's  feet, 


1837.1 


REX  r.  CARROLL. 


19 


and  grappled  his  leg  and  feet,  and  caught  him  by  the 
shoes;  the  man  escaped;  witness  found  a  hatchet,  a  gun, 
a  stick,  and  some  other  articles,  on  the  ground  where 
the  struggle  was ;  he  then  went  to  where  Carroll  was 
lying,  and  brought  him  into  the  house;  his  person  was 
examined,  and  cartridges,  balls,  and  powder,  and  a 
prayer  book,  were  found  on  him;  witness  could  not 
state  whether  there  was  any  shot  fired  whilst  he  was 
struggling  with  the  man;  the  school  house  was  burned 
on  that  night.  Witness  identified  the  prisoner.  On 
his  cross-examination,  he  said  that  he  did  not  think  the 
person  who  bid  him  put  in  his  head  had  any  intention 
of  injuring  him;  the  lapse  of  time  was  such  as  to  con- 
vince him  it  was  not  his  intention  to  shoot  him ;  the 
prisoner  was  struck  twice  by  witness,  and  oftener  by 
the  servant;  he  was  left  for  dead;  his  jaw  bone  was 
broken;  the  prisoner  smelt  strongly  of  whiskey,  and 
*  appeared  to  have  drank  a  good  deal;  it  was  in  [*80] 
a  lane  he  had  the  second  struggle,  rather  at  the  end  of 
the  house;  the  lane  was  to  the  northward  of  the  house; 
a  considerable  time  elapsed  (not  quite  quarter  of  an 
hour),  between  his  knocking  down  the  man  and  finding 
him  again;  found  him  raised  on  one  hand;  he  had  time 
to  have  run  away,  but  remained  there  from  inability  to 
move ;  heard  a  snapping  or  saw  a  spark  of  the  second 
gun  in  the  lane ;  it  was  before  the  struggle  he  saw  the 
spark  or  heard  the  snap ;  the  man  was  between  five  or 
six  yards  distant  from  him ;  could  not  discern  the  lock 
of  the  gun  or  muzzle,  but  saw  the  figure  of  the  gun; 


i  I, 


f^i- 


41. 


'.[■4- 


80 


JEBB'S  RESERVED  CASES. 


[May  5 


there  were  three  figures  before  him ;  had  said  and  still 
thought  they  did  not  intend  him  a  personal  injury; 
received  no  personal  injury,  save  what  he  received  from 
his  servant. 


P 


The  next  witness,  Malachi  Byrne,  stated  that  he  was 
in  Mr.  Synge's  employment  in  July;  the  first  thing  he 
heard  was  the  voices  of  the  people,  he  did  not  know 
how  many,  outside  the  house;  he  put  his  head  out  of 
the  window,  and  there  was  a  shot  fired ;  he  did  not  see 
the  person  who  fired ;  went  into  the  drawing-room,  and 
found  his  master,  who  asked  him  to  go  out ;  they  went 
out  of  a  window;  had  a  piece  of  iron  in  his  hand :  saw  a 
man  (whom  he  identified  as  the  prisoner),  engaged  with 
his  master  at  the  end  of  the  house ;  assisted  his  master, 
and  knocked  the  prisoner  down;  the  prisoner  had 
nothing  in  his  hand  when  witness  went  up;  he  went 
through  a  lane  to  the  other  side  of  the  house;  went  by 
the  south  side  of  the  house,  and  passed  the  house ;  met 
the  man,  and  saw  a  flash  of  fire,  as  if  from  the  gun  going 
off",  and  heard  the  report  in  the  lane ;  his  master  and  the 
man  grappled  with  one  another;  witness  struck  at  him, 
and  his  master  fell,  and  the  man  got  away ;  returned  to 
[*81]  *  Carroll,  and  brought  him  in;  found  a  gun 
where  Carroll  was  lying,  and  a  hat;  went  out  again, 
and  did  not  see  any  body;  witness  found  a  gun  and  a 
hatchet  where  Carroll  lay,  and  found  a  gun  ?ind  stick 
where  the  second  struggle  took  place ;  examined  the  gun 
found  in  the  lane  in  the  course  of  the  day ;  the  gun  was 


3B 


1827.] 


REX  V.  CARROLL. 


81 


empty,  but  he  could  not  speak  as  to  the  state  of  the 
lock;  CarrolVs  gun  was  loaded  with  powder  and  shot 
and  ball;  witness  brought  Carroll  in  and  searched  him, 
and  found  ball,  and  loose  powder,  and  cartridges  on  him ; 
he  thought  prisoner  had  drank  liquor,  and  that  he  was 
tipsy.  On  his  cross-examination,  he  said  that  he  was 
still  in  Mr.  Synge's  service. 


The  case  for  the  crown  closed,  and  the  prisoner  did 
not  call  any  witnesses.  The  jury  found  the  prisoner 
guilty  on  the  first  indictment,  and  acquitted  him  on  the 
second ;  and  by  consent  of  the  counsel  for  the  crown, 
the  verdict  was  entered  on  the  first  count  of  the  indict- 
ment, under  the  Whiteboy  Act.  The  learned  judge 
pronounced  sentence  of  death  on  the  prisoner,  and  fixed 
the  day  of  his  execution  for  Saturday  the  12th  of  May, 
in  order  that  in  the  meantime  the  decision  of  the  Judges 
might  be  had  on  two  points  urged  on  behalf  of  the  pri- 
soner, and  which  his  Lordship  reserved  for  their  con- 
sideration. First,  whether  upon  the  evidence  the  facts 
proved  constituted  an  offence  under  the  Whiteboy  Act 
— and  secondly,  whether  the  country  not  having  been 
proved  to  have  been  in  a  state  of  disturbance,  a  legal 
conviction  could  be  had  under  the  statute  ? 


M  i  h 


fci"  hf' 


a 


Nine  Judges  met,  {Smith,  B.,  Jebb,  J.,  and  Torrens, 
J.,  being  absent),  and  Seven  [Bushcy  C.  J.,  Lord  Nor- 
burij,  C.  J.  C.  Pleas,  McClelland,  B.,  Moore,  J.,  Johnson, 
J.,  Burton,  J.,  and  Vandekur,  J.,)  were  of  opinion  that  the 


•82 


JEBB'S  RESERVED  CASES. 


[May  16 


*  conviction  was  right;  all  of  these  seven  (except  John- 
son,  J.,  and  Burton,  J.,  who  had  doubts  on  the  first  ques- 
tion), holding  that  it  was  sustainable  on  both  grounds. 
O' Grady,  C.  B.,  and  Pennefather,  B.,  held  that  the  con- 
viction was  wrong  on  the  first  ground.  Torrens,  J., 
(who  was  absent  from  illness),  sent  his  opinion  that  it 
was  right.  Smith,  B.,  sent  his  opinion  that  it  was 
wrong  on  the  first  ground  (a). 


(a)  See  tliis  decision  referred  to  by  Buahe,  C.  J.,  in  Lis  judgment  in  Mitchell  v. 
Blake,  1  Huds.  &,  B.  199. 


THE  KING  V.  GEORGE  GOURLAY. 


1 !  n 


Embezzlement.  The  prisoner  was  a  runner  of  the  Bank  of  Ireland  till  6  o'clock 
every  day,  and  after  6,  to  G.  &  W.,  public  notaries.  Before  6  o'clock  one  day 
he  received  from  D.  money  to  pay  bills  of  exchange  which  had  been  discounted 
by  the  Bank,  and  cf  which,  owing  to  some  mistake,  payment  could  not  bo 
received  at  the  Bank.  Tlie  prisoner  promised  to  pay  tiiem  at  tiie  office  of  G.  & 
W.  The  same  evening  after  6  o'clock,  he  paid  a  part  only,  and  returned  to  B. 
some  of  the  bills  as  if  they  had  been  paid,  keeping  the  rest  of  the  money  and 
bills.  Held,  tjiat  the  bills  and  money  were  received  by  the  prisoner  as  the  ser- 
vant and  clerk  of  G.  &  W,  and  that  therefore  a  conviction  for  embezzlement  in 
tliat  character  under  the  s'..  ute  was  good. 


The  prisoner  was  tried  at  the  Commission  at  Green  St., 
before  Burton  and  Vandeleur,  J.  J,,  upon  an  indictment 
founded  on  the  51  G.  III.  c.  38  (a),  which  charged  him, 


sai 
"  Wt] 

"  san 
"of 


\U 


(a)  This  Act  is  now  repealed,  but  similar  provisions  are  contained  in  the  9  Geo. 
4,  c.  55,  8.  40. 


p  St., 

Itment 

him, 

1 9  Geo. 


1827.]  REX  J).  OOURLAY.  89 

"  for  that  he,  being  a  clerk  to  Messrs.  Gibbons  and  Wil- 
"  Hams,  and  employed  and  entrusted  by  them  to  receive 
'■  money,  bills,  notes,  and  other  valuable  securities  for 
"  and  on  account  of  them,  did  on,  &c.  at,  &c.  by  virtue 
"  of  such  employment  and  entrustment,  receive  and  take 
"into  his  possession  for  and  on  account  of  the  said 
**  Messrs.  Gibbons  and  Williams,  divers,  to  wit,  five 
"  bills,  commonly  called  Bank  Post  Bills,  each  for  the 
"  sum  and  of  *  the  value  of  £20,  and  divers  otlier  [*83] 
"  securities,  called  Bank  Notes,  then  and  there  being 
"the  property  of  the  said  Messrs.  Gibbons  and  Wil- 
^^liams;  and  that  the  said  George  Gourlay  having  so 
"  received,  and  taken  into  his  possession  the  said  notes, 
"  &c.  for  and  on  account  of  his  said  employers,  after- 
"  wards,  to  wit,  &c.  at,  &c.  fraudulently  and  unlawfully 
"did  secrete  and  make  away  with  the  said  bills  and 
"  notes;  and  so  the  jurors,  &c.  say  that  the  said  George 
"  Gourlay  so  being  such  clerk,  and  entrusted  as  afore- 
"said,  did  fraudulentlj''  and  unlawfully  embezzle  the 
"  said  bills  and  notes  from  the  said  Messrs.  Gibbons  and 
"  Williams,  his  said  employers,  on  whose  account  the 
"  same  were  delivered  to,  and  taken  into  the  possession 
"of  him  the  said  George  Gourlay,  against  the  peace, 
"  and  contrary  to  the  statute." 

The  facts  were  these.     The  prisoner  was  engaged  as 

a  runner  of  the  Bank  of  Ireland  until  6  o'clock  in  the 

evening,  and  after  that  time  as  an  evening  runner  of 

Gibbons  and   Williams.     According  to  the  practice  in 

14 


'•  )!■■> 


1  m 


a: 


^:i 


wt 


■'J?' 


f 


n  ff^-n 


i|'"    % 


I 


Il 


83  JEnn'S   RESERVED   CASES.  [May  16 

the  office  of  Gibbons  and  Williams,  who  were  Public 
Notaries,  all  bills  sent  to  them  by  the  Bank  to  demand 
payment  or  to  protest  for  the  Bank,  are  divided  into  five 
parcels  every  evening,  and  distributed  by  them  to  five 
runners  to  colle^f,  each  runner  havinrr  a  distinct  walk. 
On  the  2nd  of  April,  1S27,  John  Duffy  sent  his  clerk, 
Patrick  Bray,  to  pay  four  bills  of  exchange,  which  the 
Ban!:  had  discounted  for  him,  and  which  he  had  in- 
dorsed ;  and  gave  him  £  194  \s.  Acl,  the  amount  of  the 
bills;  there  were  two  bank  post  bills  among  the  notes 
so  given.  The  clerk  in  the  Bank  Post  Bill  Office 
refused  to  mark  these  two  post  bills,  on  account  of  some 
irregularity,  in  consequence  of  which  they  would  not 
[*84]  be  taken  from  Bray  as  payment,  *  and  he  was 
unable  to  take  up  the  four  bills  in  the  Bank.  Bray 
met  the  prisoner  (knowing  him  to  be  a  runner  of  the 
Bank,  and  also  an  evening  clerk  and  runner  of  Gibbons 
and  WilJiains)  in  the  runner's  office  of  the  Bank  between 
5  and  G  o'clock  in  the  same  evenino;,  and  havino;  informed 
him  of  the  circumstances,  asked  him  to  pay  the  four 
bills.  The  prisoner  said  he  would  pay  them  at  the 
office  of  Gibbons  and  Williams.  Bray  then  gave  him 
the  £194  Is.  Ad.  for  that  purpose.  The  four  bills  not 
being  paid  in  the  Bank  were  sent  the  same  evening, 
according  to  the  usual  course,  to  Gibbons  and  Williams 
to  demand  payment,  or  if  not  paid,  to  protest.  The 
bills  were  then  given  by  Gibbons  and  Williams  to  the 
prisoner  to  collect  in  his  walk,  in  which  Duffy,  the 
acceptor,  lived,  and  the  prisoner  signed  a  receipt  for 


y 


J.  827.] 


REX   V.  GOURLAY. 


84 


tliem.  He  afterwards  paid  into  the  office  of  Gibbons  and 
Williams  tlie  amount  of  one  of  the  bills,  and  delivered 
to  Bray  three  of  them,  but  kept  the  fourth  bill,  and  also 
kept  the  amount  of  three  of  the  bills. 

Two  questions  were  left  to  the  jury:  1st,  Whether 
the  prisoner  took  the  bank  notes  and  post  bills  from 
Bray  for  the  purpose  of  taking  np  the  four  bills  of 
exchange  when  they  should  be  sent  to  Gibbons  and 
Williams,  as  notaries  of  the  Bank?  iidly,  Whether 
the  prisoner  had  in  his  possession  the  bank  notes  and 
post  bills  received  from  Bray,  when  he  (prisoner)  deli- 
vered to  J5r«y  the  three  bills  due  by  i)/(^y .''  And  the 
jury  were  directed,  if  they  were  of  opinion  in  the  affir- 
mative on  both  questions,  to  find  the  prisoner  guilty. 
They  found  him  guilty.  But  it  was  contended  by  the 
prisoner's  counsel,  that  this  was  not  an  embezzling  by 
the  prisoner,  as  the  servant  or  clerk  of  ^Gibbons  [*85] 
and  Williams,  within  the  statute ;  and  this  question  was 
reserved  for  the  opinion  of  the  Judges. 

All  the  Judges  being  present,  eight  Judges  (Busiie, 
C.  J.,  Lord  NoRBURY,  C.  J.  C.  Pleas,  O'Grady,  C.  B., 
Smith,  B.,  M'Clellaxd,  B.,  Johnson,  J.,  Pennefather, 
B.,  and  Torrens,  J.,)  were  of  opinion  that  the  convic- 
tion was  right  upon  the  evidence  stated.  They  held 
that  the  bills  and  bank  notes  were  received  in  the  bank 
by  the  prisoner  as  the  servant  and  clerk  of  Gibbons  and 
Williams;  and  they  relied  principally  on  the  case  of 


■I" 


1  1. 


HI 


'.£<  '> 


3 


\   I 

-  1. 

&   • 

1 

h 

1 

^ 

M 


m 


»' 


JEBB'S   RESERVED   CASES. 


[May  16 


Rex  V.  Beecheij,  Russ.  &  Ry.  319.  The  other  four 
Judges  (Moore,  J.,  Burton,  J.,  Vandeleur,  J.,  and 
Jebb,  J.,)  were  of  a  contrary  opinion:  tliey  held,  that 
the  bills  were  given  to  the  prisoner,  not  as  servant  to 
Gibbons  and  Williams,  but  as  the  spc'al  bailee  of  Braij, 
or  his  employer  Dujfij;  for  that  the  prisoner's  duty  or 
authority  to  receive  money  on  account  of  Gibbo?is  and 
Williams  did  not  begin  till  he  commenced  his  rounds 
as  their  runner,  to  collect  payment  for  bills;  and  they 
held  that  if  the  prisoner  had  lost  this  money,  or  been 
robbed  of  it,  before  he  was  sent  his  rounds,  the  loss 
would  not  have  fallen  on  Gibbons  and  Williams,  or  on 
the  bank. 


See  ante,  King  v.  Reilly,  51,  and  note. 


vt 


1828.] 


PRESENTMENT   FOR  SURGEON. 


8G» 


*  IN  the  Matter  of  a  PRESENTMENT  for  the  Surgeon  of  a 
prison  in  the  County  of  CAVAN. 


A  presentment  of  a  salary  to  a  surgeon  for  attending  a  gaol  under  tlio  7  G.  4,  c.  7'l, 
8.  73,  in  addition  to  liis  salary  under  the  5  G.  3,  c.  20,  and  51  G.  3,  c.  62  (Infir- 
mary Acts),  held  to  be  illegal. 


The  following  case  was  submitted  by  Torrens,  J.,  for 
the  opinion  of  the  Judges: 


"  By  the  Act  5  Geo.  III.  c.  20,  entitled,  *  An  Act  for 

*  erecting  and  establishing  Public  Infirmaries  or  Ilospi- 

*  tals  in  Ireland,'  it  is  enacted,  '  tha*  the  surgeons  to  be 
'  chosen  or  appointed  for  the  respective  county  infirma- 

*  ries  should  be  paid  by  the  year  a  sum  not  exceeding 
'£100,  to  be  paid  out  of  the  public  money.'  By  the 
'  54  Geo.  III.  c.  G2,  entitled,  'An  Act  for  amending  the 
'  former  Act,  so  far  as  relates  to  the  surgeons  and  apo- 
'  thecaries  of  county  infirmaries,'  it  is  provided,  '  that 
'  the  grand  juries  of  the  several  counties  in  which  such 
'  infirmaries  are  established,  shall  and  may  present  a 
'  sum  not  exceeding  £  100,  to  be  raised  off  the  county 
'  at  large,  and  to  be  paid  to  the  surgeon  of  the  infirmary 
'  in  addition  to  the  salary  which  such  surgeon  is  entitled 
'  to  receive  under  or  by  virtue  of  the  aforesaid  Act  of 
'  the  5  Geo.  III.  or  any  other  Acts  then  in  force  in  Iro- 
'  land,  relating  to  such  infirmaries.'  By  s.  3  of  the  last- 
mentioned  Act,  it  is  provided,  '  that  it  shall  not  be  law- 


;»:■  U 


I  t-i 


w. 


,^" 


ft 


ii'-;: 


,.11. 


86 


JEDB'S    RESERVED   CASES. 


[January  30 


*  ful  for  any  grand  jury  to  presen',.  such  additional  salary, 
'  unless  the  surgeon,  for  whom  it  is  presented,  tsliall  have 

*  given  his  attcudaiice  and  professional  assistance,  with- 

*  out  any  other  or  further  fee  or  reward,  to  the  prisoners 

*  and  others  in  the  gaol  of  the  county,  to  the  infirmary 

*  of  vi^hich  he  has  been  appointed  surgeon,  if  such  gaol 

*  be  situated  within  five  miles  of  such  infirmary.' 

[*87]  "  Surgeon  George  Roe  has  been  for  several 
years  past  the  surgeon  of  the  county  infirmary  of  the 
County  Cavan,  and  the  gaol  is  situate  within  less  than 
five  miles  of  the  infirmary ;  and  Surgeon  Roe  has,  up 
to  the  Spring  Assizes,  1827,  attended  the  gaol  of  the 
county  without  fee  or  reward,  save  the  salaries  given 
him  by  the  aforesaid  Acts. 

"  By  the  Act  7  Geo.  IV.  c.  74,  s.  72,  it  is  enacted, 
'  that  the  grand  jury  of  every  county  shall,  and  they  are 
'  thereby  required,  from  time  to  time,  to  appoint  a  sur- 
*geon  (qualified  as  therein  mentioned)  to  the  prisons 
'  within  their  jurisdiction,  and  every  sucli  surgeon  is 
'  required  to  visit  every  such  prison  twice  at  least  in 

*  every  week,  to  see  every  sick  person  confined  therein, 

*  to  examine  the  condition  of  the  hospital,  to  keep  a  jour- 
'  nal,  to  enter  the  date  of  every  attendance,  &c.,  and  to 
'  lay  such  journal  before  the  Board  of  Superintend ance 
'and  the  grand  jury  at  every  assizes.'  And  it  is  then 
provided,  '  that  it  shall  and  may  be  lawful  for  the  grand 

*  jury  at  every  assizes  after  such  appointment,  to  present 


■■1 


1828; 


PRESENTMENT   FOR   SURGEON. 


87 


*  a  salary  to  such  surgeon,'  &-c.  And  it  is  further  pro- 
vided in  the  same  section,  '  that  notliinr^  in  the  said  Act 
'contained  shall  prevent  the  continuance  of  any  medical 
'attendant  appointed  before  the  passinj^  of  this  Act.' 
By  the  109th  section  of  the  same  Act,  and  by  the  '20th 
Rule  or  Ilegulatior  for  the  Management  of  Prisons,  it 
is  provided,  'that  the  physician  or  surgeon  shall  ex- 
'  amine  every  prisoner  who  shall  be  brought  into  the 
'  prison  before  he  shall  be  passed  into  the  proper  ward, 
'and  likewise  examine  every  prisoner  before  he  be  dis- 
'  charged,  and  give  his  opinion  whether  such  discharge 
'be  safe.' 


*  "  The  grand  jury  of  the  Co.  Cavan,  at  the  [*SS] 
Spring  Assizes  of  1827,  submitted  a  presentment  to  the 
then  going  Judge  of  Assize  of  £40  as  a  half-year's 
salary  to  Surgeon  Roe,  in  consideration  of  the  additional 
duties  to  be  performed  by  him  under  the  7  Geo.  IV.  as 
surgeon  to  the  gaol,  and  in  addition  to  his  salary  as  sur- 
geon of  the  county  Infirmary.  At  the  last  Summer 
Assizes  of  the  same  county,  a  like  presentment  for  £  40 
was  submitted  to  me,  but  I  was  infrrmed  by  several  of 
the  grand  jury,  that  at  the  Spring  Assizes,  the  learned 
Judge  who  then  presided  entertained  considerable 
doubts  as  to  the  legality  of  the  presentment,  and  upon 
conference  with  that  learned  Judge,  I  find  such  infor- 
mation was  correct.  As  I  entertain  doubts  on  the 
legality  of  the  presentment  submitted  to  me  at  the  last 
assizes,  and  the  question  being  one  on  which  an  unifor- 


V   pi 


|;l     ib 

u\ 

M'-' 

\ 

i'     Ih  ^' 

"A 

^m'.i 

'.  ,i' 

*m      \ 

■  h 

jat;  \ 

1  -. .. ; 

Ell 
m 


I', 


88 


JEOn'S    RESERVED   CASES. 


[Juno  9fi 


mity  of  practice  should  prevail,  I  submit  the  decision  of 
it  to  your  Lordships." 

Ten  Judges  ruled,  that  the  presentment  was  bad. 
(Burton,  J.,  was  absent.)  Torrens,  J.,  held  the  pre- 
sentment to  be  good  {a). 

(«)  See  the  6  und  7  W.  4,  c.  116,  b.  86. 


THE  KING  V.  PETER  DELEANY. 


•Sliootinir  a  Bhcriff's  bailiff  who  attempts  to  nrrcst  under  a  wnrrant  regular  on  the 
face  of  it,  hut  dated  prior  to  the  writ  on  whicii  it  m  f()undi'd,  held  to  be  ninn- 
Hl!iu|;htcr  only.  A  juror  having'  been  by  inistaiio  entered  upon  the  panel  and 
called  and  sworn  by  a  wrong  name,  and  an  objection  having  been  taken  before 
verdict;  held,  that  tiicro  was  a  niistriul. 


|!«l 


The  prisoner  was  convicted  at  the  Commission  at  Green- 
street,  before  Jebb,  J.,  of  maliciously  shooting  at  John 
Burnett,  with  intent  to  do  him  grievous  bodily  harm. 
[*89]  The  *  evidence  was,  that  John  Burnett,  a  sheriff's 
bailiff,  and  who  said  he  had  frequently  acted  as  such, 
received  from  the  sheriff  of  the  city  of  Dublin  a  warrant 
against  the  prisoner,  g^'ounded  on  a  supposed  writ  of 
capias  ad  satisfacietidum.  The  warrant  contained  the 
names  of  Burnett  and  two  assistants.  He  proceeded 
with  his  warrant  and  his  assistants  to  the  house  of  the 


withoul 
*  in  the 


I8i>8.] 


REX   V.  DRLHANY. 


89 


prisoner  about  9  o'clock  in  tho  morning,  ami  having 
obtained  admission  at  the  hall-door,  went  up  stairs,  fol- 
lowed by  his  assistants,  to  a  drawing-room,  avIkm'c  tho 
prisoner  was,  along  with  another  man.  Upon  opening 
the  drawing-room  door,  his  entrance  was  opposed  by  tlie 
man  who  was  with  the  prisoner;  liunicfl  said  alond, 
"that  he  had  a  writ  against  Mr.  Dekamj.'^  Deleamj, 
tho  prisoner,  went  into  an  adjoining  bed-chainbcr; 
Burnett,  who  had  got  into  tlie  drawing-room,  endea- 
voured to  follow  him  into  tho  bed-chamber;  the  other 
man  opposed  his  entrance,  but  with  the  aid  of  his  assist- 
ants he  got  in.  Upon  getting  in,  the  prisoner  was  stand- 
ing before  him  with  a  pistol  levelled  at  him ;  Burnett 
desired  the  prisoner  to  drop  his  pistol  and  surrender, 
and  immediately  went  forward  to  seize  him.  The  pri- 
soner fired  the  pistol,  and  shot  Burnett. 


rn. 

's 

bh, 

Int 

lof 

Ihe 

led 

Ihe 


The  warrant  was  proved,  and  was  regular  on  the  face 
of  it,  but  it  was  dated  the  1st  of  February,  and  the  writ, 
which  was  produced  on  the  trial,  was  tested  the  12th 
of  February,  and  issued  the  29th  of  February.  Tlie 
sub-sheriff  said  there  was  a  mistake  in  the  date  of  the 
warrant,  February  being  put  for  March;  but  this  was 
not  proved. 

It  was  contended  on  the  part  of  the  prisoner,  that  the 

writ  produced  not  supporting  the  warrant,  Burnett  acted 

without  legal  authority ;  and  that  if  death  had  happened 

*  in  the  resistance,  the  offence  would  have  been  [*90] 

15 


!  r\ 


'!vvi 


90 


JKnU'S  REHEKVED  CASEH. 


[June  30 


1^ 

I' 


i 


but  manslaughter,  and  therefore  that  the  prisoner  ought 
to  be  acquitted  (a).  The  case  was  reserved  for  the 
opinion  of  the  Judges. 

A  further  point  was  reserved,  in  case  the  Judges 
should  hold  the  conviction  to  have  been  right.  The 
jury  retired  to  consider  their  verdict,  and  upon  return- 
ing into  Court  their  names  were  called  over  as  usual ; 
upon  the  name  of  Bernard  Fhjnn  being  called  as  one  of 
the  jury,  it  appeared  there  was  no  such  person  upon 
the  jury,  and  that  a  man  named  Bernard  Fagan  had 
answered  to  the  name  oiFlynn,  and  been  sworn  by  that 
name.  There  was  no  person  named  Flynn  on  the  panel, 
but  the  sheriff,  in  transcribing  the  names,  inadvertently 
wrote  Fhjnn  instead  of  Fagan,  which  gave  rise  to  the 
mistake.  It  was  objected  by  the  prisoner's  counsel, 
before  the  verdict  was  delivered,  that  this  was  a  mistrial. 
The  learned  Judge  in  reserving  this  latter  question 
referred  to  Hill  v.  Yates,  12  East,  229;  Doveij  v.  Hobson, 
6  Taunt.  460,  (1  E.  C.  L.  452,)  and  2  Marsh.  154;  and 
The  King  v.  Tremaine,  7  Dowl.  and  R.  460;  as  bearing 
upon  the  point. 


(n)  This  consequence  followed  from  the  provision  in  Lord  Ellcnborough's  Act, 
43  G.  3,  c.  .IS  (now  repealed),  under  which  the  indictment  was  framed,  "tliat  if  the 
"  acts  were  committed  under  such  circumstances,  as  that  if  death  had  ensued  there- 
"  from,  the  same  would  not  in  law  amount  to  the  crime  of  murder,  then  tlic  prisoner 
"  so  indicted  should  be  acquitted."  No  such  proviso  occurs  in  the  corresponding 
Act  now  in  force,  1  Vict.  c.  85,  which  in  ss.  3  &  4,  distinguishes  between  the  cases 
where  the  intent  is  to  commit  murder,  and  where  it  is  not. 


I  figs 

I 

sent 
upoi 


Where  a 
him,  b 
then  pi 
from  /li 
Was  wr 

The  p 
Summ 
for  the 
examin 
crown 
whose 
cutor,  w 
sworn,  1 
changet 
which  t 
right  to 
Upon  h 
stances 
first  two 


1828. 


REX   r.   MORAN. 


DO 


Eleven  Judges  present  {Pennrfather,  B.,  being  ab- 
sent) unanimously  ruled,  tiiat  the  conviction  was  bad 
upon  l)oth  the  points  reserved. 


.  'i.''.ii 


Vet, 
I  the 
ere- 
bncr 
|ling 
uses 


THE  KING  V.  WILLIAM  MORAN,  THOMAS    [*01] 
MACKEN  and  Others. 


Where  a  witness  was  eallcd  Uy  Uio  Crown,  and  the  Crown  declined  to  examine 
liim,  but  permitted  him  to  bo  cross-examined,  and  then  re-exiimined  Jiim;  and 
then  produced  )iii  depositions  to  show  that  wliat  he  had  tiierein  stated  varied 
iVom  liis  evidence  at  tlio  trial:  Held,  that  u  conviction  midur  these  circumstunces 
WBs  wrong. 


The  prisoners  were  tried  before  Bushe,  C.  J.,  at  the 
Summer  Assizes  for  the  County  of  Westmeath,  in  1828, 
for  the  murder  of  John  Mathews.  Two  witnesses  were 
examined  for  the  crown,  whose  names  appeared  on  the 
crown  book  as  prosecutors;  and  a  third,  William  Gltj  m, 
whose  name  also  appeared  on  the  crown  book  as  prose- 
cutor, was  called  and  sworn.  Immediately  on  his  being 
sworn,  the  counsel  for  the  crown  stated  that  they  had 
changed  their  minds,  and  would  not  examine  him ;  upon 
which  the  counsel  for  the  prisoners  insisted  upon  their 
right  to  cross-examine  him,  which  was  assented  to. 
Upon  his  cross-examination,  he  stated  some  circum- 
stances differently  from  what  had  been  sworn  by  the 
first  two  witnesses,  and  favourably  for  the  prisoners; 


1 1^  ^'i'i  \im 


il 

m 


91 


JEBB'S  RESERVED  CASES. 


[November  12 


after  which  tlie  counsel  for  the  crown  examined  him  as 
to  some  of  the  matters  to  which  he  had  sworn,  and  then 
asked  him  if  he  had  given  a  different  account  of  the 
matter  when  examined  upon  the  coroner's  inquest,  and 
when  he  swore  informations  before  a  magistrate?  and 
upon  his  saying  that  he  had  not,  they  put  into  his  hand 
his  depositions  on  the  inquest,  and  his  informations 
before  the  magistrate ;  upon  which  the  counsel  for  the 
prisoners  objected,  and  contended  that  the  counsel  for 
the  crown  had  not  a  right  to  examine  him  to  that  effect, 
or  to  read  his  depositions  or  informations  to  the  jury ; 
and  the  counsel  for  the  crown  insisting  that  they  had 
such  a  right,  the  learned  Judge  permitted  them  to  do 
so,  stating  that  in  the  event  of  a  conviction,  he  would 
reserve  the  question  for  the  opinion  of  the  Judges.  The 
examination  accordingly  continued,  and  the  depositions 
[*92]  and  informations  were  *  given  in  evidence,  and 
appeared  to  be  contradictory  to  the  testimony  of  the 
witness;  and  after  further  evidence  on  both  sides,  all 
the  prisoners  were  acquitted  of  murder,  and  Moran  and 
MacJien  were  Ibund  guilty  of  manslaughter.  The  learn- 
ed Judge  did  not  pronounce  any  sentence,  but  entered 
curia  adoisari  vult  in  the  crown  book,  in  order  that  the 
opinion  of  the  Judges,  whether  the  conviction  was  good 
or  not,  might  be  obtained. 


The 


Ten  Judges  {Smith,  B.,  and  Vandekur,  J.,  being 
absent),  were  unanimously  of  opinion  that  the  convic- 
tion was  wrong,  and  that  the  evidence  ought  not  to  have 


['■  .m 


1828.1 


REX  ».  STAPLETON. 


93 


been  received ;  that  it  is  not  competent  to  a  party  who 
has  produced  a  witness,  and  had  him  sworn  (unless  it 
were  by  mistake  of  his  person),  even  although  he  had 
not  been  asked  a  question  on  their  part,  to  discredit 
him;  that  it  appeared  the  questions  were  asked,  and  the 
depositions  and  informations  read  for  this  purpose ;  and 
that  if  they  were  read  as  proof  of  the  facts  therein  con- 
tained, they  were  not  legal  evidence  of  those  facts  (a). 


(a)  Sec  Eioer  v.  Ambrose,  3  B.  &.  C.  746  (10  E.  C.  L.  220) ;  and  Rex  v.  Oldroyd, 
Rubs.  &  Ry.  88. 


Roscoc  on  Criminal  Evidence,  p.  169,  Shoiswood's  cd.  Pliil.  1841. 


THE  KING  V.  JAMES  and  CATHERINE  ST  A-    [*93] 

PLETON. 


Where  husband  and  wife  are  both  concerned  in  a  highVvay  robbery,  tlie  presence 
of  the  husband  at  tiie  commission  of  the  offence  is  only  presumptive  evidence  of 
coercion  exercised  by  him  over  the  wife.  Semble,  that  in  a  case  of  higliway 
robbery,  coercion  by  tiie  husband  is  not  a  defence  for  the  wife. 


,    -*f 


,ul 


!  '■  ■   ! 


'C3 


C- 

;e 


Tke  prisoners  were  indicted  for  highway  robbery,  and 
tried  before  Bushe,  C.  .T.,  at  the  Summer  Assizes  for 
Carlorv,  in  1828.  It  appeared  in  evidence  that  the 
prosecutrix,  Marit  Quin,  was  travelling  alone  on  foot 
towards  Dublin,  when  she  was  overtaken  by  the  prisoner 


r 

i;i     . 

'r 


.  ft 


■'.s; 


93 


JEDB'S  RESERVED  CASES. 


[November  12 


Catherine,  whom  she  did  not  know,  and  who  accosted 
her,  asking  her  how  fur  she  had  to  travel,  and  advised 
her  to  secure  her  money,  as  the  road  was  dangerous; 
she  asked  her  how  much  money  she  had,  and  proposed 
that  they  should  put  together  their  respective  monies, 
and  conceal  them ;  upon  which  the  prosecutrix  said  she 
had  but  £  2,  and  that  it  was  well  secured  in  '  pocket- 
book,  which,  at  her  request,  she  showed  tht;  prisoner 
Catherine;  the  latter  examined  it,  and  returned  it  to  her 
after  they  had  travelled  some  time.  The  other  prisoner, 
the  husband,  overtook  them,  arid  after  a  time,  left  them, 
and  then  again  joined  them ;  and  after  some  conversation 
he  seized  the  prosecutrix  and  knocked  her  down,  and  his 
wife  sat  down  on  her  head  and  held  her  down  while 
both  rifled  her  pockets  of  all  the  property  in  them.  The 
husband  then  desired  \Az  wife  to  walk  on,  which  she 
did,  taking  with  her  the  prosecutrix's  bonnet;  the  hus- 
band then  attempted  to  ravish  the  prosecutrix,  and  on 
her  resistance  beat  and  bruised  her  in  a  cruel  manner, 
and  tore  off"  lier  clothes  and  threw  them  about  the  road. 
Her  screams  brought  four  persons  to  he.  i-.-dstance, 
who  rescued  her  and  pursued  and  appreh'i.Jf  \  the 
prisoner. 


I  R 


In  summing  up  the  evidence,  the  learned  Judge  told 
[*94]  the  *  Jury,  that  if  they  believed  that  the  woman 
acted  under  the  coercion  of  her  husband,  they  ought  to 
acquit  her;  and  if  they  believed  that  she  acted  volun- 
tarily and  without  coercion,  they  ought  to  find  her 


til; 

(fill  ft. 


1828.] 


REX  V.  STAPLETON. 


94 


guilty,  if  they  believed  the  evidence.  The  Jury  found 
her  guilty,  and  the  learned  Judge  reserved  for  the  con- 
sideration of  the  Judges  the  question,  whether  the  con- 
viction of  the  wife  was  legal,  on  two  points;  First, 
whether  the  offence  was  one  in  which  the  coercion  of 
the  husband  constitutes  a  defence  for  the  wife.  Second- 
ly, if  it  were,  whether  the  existence  of  coercion  ought 
not  to  be  inferred  from  the  presence  of  the  husband  as 
a  legal  conclusion,  without  leaving  any  question  upon 
it  to  the  jury. 


'■ ;- .  i\^i\ 


M  Tj 


m 


n 


All  the  Judges  being  present,  except  Smith,  B.,  and 
Vandekur,  J.,  Nine  Judges  held  that  the  question  was 
properly  submitted,  and  that  consequently  the  convic- 
tion was  right.  Johnson,  J.,  thought  the  question  was 
submitted  to  the  jury  in  a  way  which  might  ha\  e  left 
them  under  some  mistake  as  to  the  nature  of  the  coercion 
of  a  husband  over  a  wife  in  the  contemplation  of  law. 


[o 


It  was  not  necessary,  in  consequence  of  this  opinion 
of  the  Judges  to  decide  the  first  question;  but  it  was 
much  discussed,  and  authorities  were  cited  and  con- 
sidered. It  was  the  opinion  of  the  majority,  that  a  wife 
is  not  entitled  to  the  benefit  of  the  principle  of  coercion 
of  the  husband  in  a  case  of  robbery ;  but  although  this 
was  their  opinion,  they  did  not  decide  the  question. 


See  Rex  v.  Morris,  Russ.  &  Ry.  270.    Roscoe  on  Crim.  Evidence,  879,  and  scq. 
1  Russell  on  Crimes,  15,  and  see). — Shnrswood's  ed.  Phil.  1841. 


m      i-  tiJ 


•95 


JEBB'S    RESERVED    CASES. 


[January  23 


18a.').  J 


#IN  the  Matter  of  the  appointment  of  a  LOCAL  INSPEC- 
TOR to  CAVAN  GAOL. 


Tlie  Judge  of  Assize  has  a  discretion  to  withhold  his  approbation  to  the  appoint- 
ment by  the  Grand  Jury  of  a  new  Inspector  of  a  County  Gaol  uiulcr  the  7  Geo. 
IV.  c.  74. 


By  the  7tli  Geo.  IV.  chap.  74,  sec.  65,  (the  general 
Gaol  act),  it  is  enacted, — '*  That  it  shall  and  may  be 
"  lawful  for  each  and  every  Grand  Jury  of  every  county, 
"  county  of  a  city,  and  county  of  a  town  in  Ireland,  with 
♦*  the  consent  and  approbation  of  the  Court  or  Judge  at 
"  each  assizes  and  in  each  presenting  Term,  from  time 
•*  to  time,  to  appoint  a  local  inspector  for  such  county, 
"  &c.  respectively  (such  Inspector  to  be  removable  by 
"  the  Grand  Jury  of  such  county,  &c.  &c.,  with  the 
"approbation  of  the  next  going  Judge  of  assize)  to 
"regulate,  under  the  Board  of  Superintendance  ap- 
"  pointed  under  this  act,  the  procuring  and  providing 
"  of  Food  and  necessaries  for  the  prisoners  in  the  Gaol," 
&c. 

Previous  to  the  Summer  Assizes  in  1828,  it  being 
known  that  a  vacancy  in  the  office  of  Local  Inspector 
of  the  Gaol  of  Cavan  would  take  place  at  those  assizes, 
a  brother  of  the  High  Sheriff  of  the  county  declared 
himself  a  candidate  for  the  office,  and  by  letters  solicited 


ttf 


183!).j 


CAVAN   GAOL   INSPECTOR. 


93 


the  gentlemen  of  the  county  who  were  usually  called  to 
serve  on  the  Grand  Jury,  to  sapport  Jiim  by  their  votes 
at  the  next  assizes.  Some  of  the  gentlemen  of  the 
county,  in  reply,  promised  him  their  support;  others 
informed  him  that  they  would  reserve  their  decision 
until  they  had  an  opportunity  of  discussing  the  merits 
of  the  respective  candidates,  and  others  denied  him  their 
support  altogether.  After  the  Grand  Jury  had  been 
sworn,  it  was  intimated  to  Torrens,  J.,  the  Judge  of 
Assize,  by  several  of  its  most  respectable  members, 
*  that  gentlemen  of  considerable  fortune  and  sta-  [*96] 
tion  in  the  county,  who  were  in  attendance  in  the  Grand 
Jury  box  to  be  sworn  on  the  Grand  Jury,  if  called,  and 
who  were  usually  on  former  Graiid  Juries,  had  been 
passed  by  because  their  opinions  were  adverse  to  the 
election  of  the  High  Sheriff's  brother  to  the  office  of 
Inspector;  and  the  learned  Judge  was  referred  to  former 
grand  panels  as  evidence  of  their  almost  uniform  service 
on  former  Grand  Juries,  whenever  they  were  in  atten- 
dance. It  was  also  represented  to  him  that  such  of  the 
Grand  Jurors  as  were  hostile  to  the  i)retensions  of  the 
candidate  in  question,  or  who  declined  pledging  them- 
selves, were  called  much  lower  down  on  the  panel  than 
their  rank  and  fortune,  and  position  on  former  Grand 
Juries,  warranted;  and  that  thus  had  the  persons  called 
in  the  commencement  of  the  panel  answered  to  their 
names,  the  others  would  have  been  left  off  the  Jury 
altotTcther.  The  learned  Judge  was  referred  to  a  com- 
parison  of  this  panel  with  former  ones  as  to  this  fact, 
16 


■  ■i,*.^ 


■f 

|5 

i'lci  ?i 


<}  m 


t  1 

C'     1: 


i  m 


m.   >  ii 


>s 


*       1 

j 

I  \ 

[1  I 

li 


96 


JEBB'S    RESERVED    CASES, 


[January  23 


and  also  as  to  the  fact  that  persons  in  immediate  con- 
nexion and  relationship  with  the  High  Sheriff  and  the 
candidate  were  placed  much  higher  on  the  panel  than 
usual,  or  their  pretensions  warranted;  one  of  those  per- 
sons so  pointed  out  was  another  brother  of  the  High 
Sheriff,  whose  name  stood  high  in  the  Grand  Jury  list. 

Upon  the  vacancy  having  taken  place,  towards  the 
conclusion  of  the  Assizes,  tlie  Sheriff's  brother  and 
another  person  were  proposed  as  candidates,  and  the 
former  was  elected  by  the  Grand  Jury  by  a  majority  of 
three ;  the  result  of  the  election  was  announced  to  the 
learned  Judge  in  open  court. 


It  being  evident  during  the  Assizes  that  great  dis- 
[*97]  satisfaction  *  prevailed  amongst  the  leading 
gentlemen  of  the  county  as  to  the  manner  in  which 
the  Grand  Jury  had  been  formed,  and  that  the  Grand 
Jury  had  been  modelled  in  consequence  of  the  answers 
given  during  the  canvass;  the  learned  Judge  did  not 
consider  himself  bound  to  give  his  "  consent  and  appro- 
bation" to  the  appointment  of  the  elected  candidate, 
considering  it  right  that  the  opinion  of  another  Grand 
Jury,  not  summoned  under  such  circumstances  as  the 
present,  should  be  taken  upon  the  appointment.  His 
lordship  therefore  refused  to  lat  the  presentment;  re- 
serving for  the  decision  of  the  Judges  the  question, 
whether  the  statute  gives  the  Judge  who  presides  in 
the  criminal  court,  the  power  of  refusing  his  consent 


183!).]      OFFICERS   AT  ADMIRALTY  (COMMISSION.  !)7 

and  approbation  to  the  Grand  Jury  appointment,  under 
such  circumstances  as  above  stated ;  the  board  of  super- 
intendance  being  instructed  to  appoint  an  inspector  ad 
interim,  until  the  decision  of  the  Judges  should  be 
given. 


%-l 


m 


n 


All  the  Judges  (except  Smith,  B.,  and  W  Clellapd, 
B.,)  being  present,  unanimously  decided  that  the  Judge 
had  a  discretion  to  withhold  his  concurrence. 


IN  the  Matter  of  PRESENTMENTS  for  the  Clerk  of  the  Crown 
and  Sheriffs  upon  an  ADMIRALTY  COMMISSION. 

A  commission  to  the  going  Judge  of  Assize,  for  tlie  trial  of  Admiralty  ofTcnnes, 
under  tiio  23  Ik,  i\  Geo.  III.  clia|).  14,  see.  4,  is  not  a  special  commission  witiiiu 
the  meaning  of  the  4  Geo.  IV.  c.  43,  sec.  3.  (6  &  7  Wm.  IV.  e.  116,  s.  113.) 

Previous  to  the  Summer  Assizes  for  the  city  of  Cork 
in  1823,  a  commission  issued,  directed  to  0^ Grady, 
C.  B.,  *  and  Pennefather,  B.,  (the  then  going  [*98] 
Judges  of  Assize  for  the  Munster  Circuit),  Sir  Jonah 
Barrington,  Judge  of  the  Admiralty,  and  others  of  his 
Majesty's  counsel,  requiring  them,  or  any  two  of  them, 
to  hear  and  determine  all  offences  committed  on  the 
high  seas,  and  to  deliver  the  gaol  of  the  City  of  Cork  of 
all  prisoners  comiiiitted  for  such  offences.     This  com- 


I   ' 


i\ 


ill 


•*'  It  11 


■V 


•■25 


,  >  f. 

J 

■' 

% 

i 

1I 

f 

i¥ 

(1 

i^ 

;  fi 

1    ! 

•,  '  ^ 

lii 

1    ' ' 

Tl   i:   I'l 

M 

08 


JEDD'S   RESERVED   CASES. 


[January  23 


mission  required  the  Judges  in  the  usual  way  to  issue 
their  precept,  &c.,  and  it  was  dated  after  tlie  ordinary 
circuit  commission.  It  was  issued  by  virtue  of  the  23 
&  24  Geo.  III.  cliap.  14,  sec.  4,  and  was  delivered  to 
O^Gradij,  C.  B.,  and  Pennrfather,  B. 

Under  this  commission  a  precept  was  issued  (separate 
and  distinct  from  the  general  Assizes'  precept),  to  the 
Sheriffs  of  the  city  of  Cork;  this  precept  was  duly  re- 
turned, a  Grand  Jury  (which  in  point  of  fact  consisted 
of  the  same  persons  as  those  returned  for  the  Assizes) 
sworn,  and  a  trial  foi  murder  had ;  the  two  Judges  sit- 
ting together  agreeably  to  the  provisions  of  the  act  and 
the  tenor  of  the  commission.  It  was  thus  a  separate  and 
distinct  commission  from  the  general  Assize  commission. 


A  t  the  close  of  the  Assizes,  the  Clerk  of  .the  Crown 
and  the  Sheriffs  submitted  to  Pennefather,  B.,  who  pre- 
sided in  the  Crown  Court  of  the  city  of  Cork,  that  this 
was  a  special  commission,  and  that  under  the  provisions 
of  the  act  4  Geo.  IV.  chap.  43,  sec.  3,  (a)  which  enacted, 
that  "  in  any  county  where  a  special  commission  or  ad- 
"journed  Assize  shall  be  held  for  the  trial  of  offenders, 
"  the  several  Grand  Juries  shall  at  the  Assizes  next  im- 
"  [*99]  mediately  *  ensuing,  subject  to  the  provisions  of 
**  that  act,  make  a  further  presentment  for  the  Clerks  of 
"  the  Crown,  Sheriffs,  and  Judges'  Crier,  equal  to  one- 
Co)  The  6  &  7  Win.  IV.  c.  116,  s.  113,  is  the  corresponding  cnaetmcnt  now  in 
force.    By  it  the  uddilionul  presentment  ia  not  to  exceed  one-fourth  of  tlio  salary. 


of 

of 


in 


182f).] 


REX   V.   M'KEARNEY. 


09 


*'  half  of  the  salary  of  such  officer,"  they  were  entitled  to 
presentments  e([Ual  to  half  of  their  salaries  under  that 
act,  and  that  the  Grand  Jury  should  be  required  to  make 
such  presentments.  Presentments  were  accordingly 
made  by  the  Grand  Jury,  upon  an  understanding  that 
they  should  be  respited  until  the  next  assizes,  which 
was  done,  in  order  that  the  opinion  of  the  Judges  might 
be  taken,  whether  under  the  foregoing  circumstances 
these  presentments  ought  to  have  been  made,  and  should 
be  fiated  by  the  next  going  Judges  of  Assize. 

All  the  Judges  (except  Smith,  B.,  and  McClelland, 
B.,)  being  present,  unanimously  decided  against  the 
presentment. 


THE  IIING  V.  JAMES  M'KEARNEY. 

Tlic  getting  the  head  out  tlirough  a  skylight  is  a  gnflicicnt  breaking  out  of  a  house 

to  constitute  buiglary. 

The  prisoner  was  tried  before  McClelland,  B.,  at  the 
Spring  Assizes  at  Omagh  in  1829,  on  an  indictment  for 
a  burglary  in  the  house  of  Louis  Davis.  There  were 
three  counts  in  the  indictment ;  the  first  for  breaking 
and  entering  the  house  by  night  with  intent  to  steal, 
&c.; — the  second  for  entering  the  house  with  intent  to 
steal,  &c.,  and  breaking  said  house  by  night,  and  get- 
tinff  out  of  the  same: — the  third  for  enterinjr  said  liouse 


ii 


I. 


■i 


If 

>.•;*•»      -ill 


■IIR 


c 


!)9 


JlinH'S    RKSKRVni)   CASES. 


[May  aft 


with  intent  to  steal,  &c.,  and  by  iiiglit  breaking  out  of 
said  house. 

[*100]  It  appeared  on  the  trial  that  on  tlie  8th  of 
January,  IS'29,  the  prisoner  was,  about  11  o'clock  at 
night,  discovered  in  the  cellar  of  the  house  hid  under  a 
heap  of  potatoes ;  he  fled  from  the  cellar  into  a  room  in 
the  house  and  locked  himself  in;  this  room  had  a  shed 
roof  and  a  skylight  in  the  roof  Dams,  the  owner  of  the 
house,  heard  the  skylight  breaking,  and  then  ran  round 
into  his  yard,  when  he  saw  the  prisoner  with  his  head 
out  of  the  skylight  endeavouring  to  escape, — he  struck 
the  prisoner  a  blow  on  the  head,  when  he  fell  down  into 
the  room,  where  he  was  taken  by  a  police  constable  im- 
mediately after,  on  his  breaking  open  the  door  which 
the  prisoner  had  locked.  The  Jury  convicted  the  pri- 
soner, but  the  learned  Baron  entertaining  some  doubts 
whether  there  was  a  sufficient  breaking  out  of  the  house 
to  constitute  the  crime  of  burglary,  reserved  the  fol- 
lowing question  for  the  twelve  Judges :  Whether,  the 
prisoner  having  only  got  his  head  out  of  the  skylight, 
this  was  a  sufficient  breaking  out  of  the  house  to  com- 
plete the  crime  of  burglary  ? 

The  Judges  unanimously  ruled  that  the  conviction 
was  right. 


Sec  Rex  v.  BniJey,  Uuss.  &,  Ry.  3-11,  wiit-rc  breaking  the  glass  of  an  outer  sbiit- 
tcr,  and  introducing  the  hand  bctsvccn  tlic  sasli  and  an  inner  shutter,  was  field  bur- 
To  the  same  effect,  Rex  v.  Davi%,  id.  499,  where  the  fore  part  of  the  i 


glnry. 


finger, 


I 


1839.] 


TIPPERARY   PRESENTMENT. 


100 


iit- 
nr- 


oiily,  went  itiHido  of  a  piino  brukcn  by  piiHliiiifr  tlio  fiiiircr  nfrniniit  it.  Rut  in  Rex  v, 
I'oril,  1  Moo,  1H3,  tlirowiiijr  u|)  ii  window  ami  iiilro(liii:irij,'  an  iiiMtriimL'rit  lirtw<'i'il 
Miirli  window  iiiid  an  insidi.'  Nlinttcr  to  forrtt  open  tlii!  Nhnttcr,  held  not  hnii^lary 
Uiili.'HN  tlio  liiind  ur  Horiie  |i,irt  of  it  iictnally  cnturcd.  It  \h  not  ncccMNury  that  llicru 
glioiild  l)(.'  uctnai  brcNiltinif  of  material:  lillinjr  up  n  Hap  usually  kept  down  by  ilH 
own  wciirlit,  in  cnoiiKli,  Hex  v.  Rii»»Hl,  I  Moo.  .')77:  (Unt  ncc;  Rrx  v.  ('  iliiii,  Ruhh, 
At  Ky.  l.>7,  (in  uailicr  cuhc,  wlicru  tlic  twelve  Jndjfi'H  wito  tMpiuiiy  divided  on  this 
point,)  AIho,  pnsliin^  open  ii  window  openinfr  on  liin^reH  and  fiistcned  by  wud^rcti, 
i'nuii);li,  Rex  v.  Hull,  Rush,  &c.  Uy,  .'I.m.  Or,  pnllin|r  down  a  KaNli  kept  in  its  pliico 
by  pully  wcii;lits,  Rrx  v.  tlainrs,  id.  I.'il.  I'ut  tbt;  doctrine  of  these  eases  will  nut 
be  extended,  and  it  Keems  that  to  enlarjre  un  openin)r  already  made,  is  not  sneli  a 
breaking;  qh  is  neucHsary  in  a  Imr^'lary,  Rex  v.  Smith,  1  Moo,  178,  Rex  v,  Rnliiiimiii, 
id,  .'J'27,  Sec  also  Roseoe's  ('rim.  Evid,  'Mi,  Shurtiwoud'u  cd,  I'hil,  IblOj  also 
2  UuNMuU  on  Crimes,  '2,  sumc  cd.,  Phil.  Iti-ll. 


IN  the  Matter  of  a  PRESENTMENT  to  tlic  Clerk  [*101] 
of  tlic  Peace  of  the  County  TIPPERARY  for  Printing 
Election  Notices. 


Held,  tlmt  the  Grand  Jury  had  a  power  of  considcrinff  what  is  a  "necessary  dis. 
liurKement"  by  the  clerk  of  the  peace,  under  the  10  (!eo.  IV,  c.  8,  s,  .'H,  for 
printing  election  notices,  &,c,;  and  that  that  ututulc  waa  not  niundutory  on  thcni 
to  present  the  sum  actually  disbursed. 


At  the  Summer  Assizes  for  the  county  of  Tipperary  in 
1829,  the  clerk  of  the  peace  required  the  grand  jury  to 
present  the  sum  of  £  1049  18^.  8^/.  to  be  levied  off  the 
county  and  paifl  to  him,  as  being  the  amount  of  sums 
he  had  actually  disbursed  for  the  expenses  of  printing 
the  notices  and  advertisements  directed  by  the  statute 


w 


I 

US!  2 

'35 


V 

fi 


I;' 


i!-:l 
•  I ' 


101 


jKnii's  rii'.acRvcD  cases. 


[\ovcinIicr  11 


10  G.  IV.  c.  8;  and  lio  made  an  aflldavit  stating  that  he 
had  made  himself  liahle  for  that  sum,  having  employed 
the  editors  of  three  newspapers  in  the  county  to  print 
and  publish  those  notices  and  advertisements,  and  had 
undertaken  the  payment  thereof;  and  he  urged,  that  tiie 
above  sum  was  to  be  considered  a  **  necessary  disburse- 
ment'" under  the  37th  section  of  the  statute. 

The  grand  jury  objected  to  the  amount,  alleging  that 
they  were  only  bound  to  present  all  such  sums  as  were 
necessarily  disbursed,  and  that  they  considered  that  it 
was  unnecessary  to  disburse  so  Inrge  a  sum  for  the  pur- 
pose; and  that  if  by  the  legal  c  'uction  of  the  words 
of  the  section,  they  had  any  povvt;i  of  considering  what 
should  be  deemed  a  necessary  disbursement,  it  was 
their  opinion,  after  due  investigation  of  the  charges, 
that  the  sum  of  £  500  was  sufficient. 

The  clerk  of  the  peace  insisted  on  the  full  amount, 
contending  that  the  statute  was  mandatory  on  the  grand 
jury  to  present  it;  and  the  grand  jury  having  persevered 
in  a  contrary  ophiion,  Moore,  J.,  (the  Judge  of  Assize) 
[*102]  directed  *them  to  make  a  presentment  in  both 
ways,  stating,  that  on  obtaining  the  opinion  of  the 
Judges,  he  should  fiat  that  one  which  came  within  the 
legal  construction  of  the  statute. 

Eleven  Judges  {Smith,  B.,  being  absent)  decided 
unanimously  against  the  claim  of  the  clerk  of  the  peace, 


I «:.'!».  I 


WICKLOW    INI'IUMAUY. 


lO'J 


and  (liroclcd  llmt  tlio  presentment  lor  .CiOO  should  be 
fiatod  {(i). 


(ii)  Tli(!  n  Si.  7  W.  I,  r.  llfi,  H.  1  l.'i,  providcH,  timt  tlio  jfrnnd  jury  niny  prrnont 
"hiic'Ii  hiiiiih  an  iiimj  hr  iii'ciHsiinj,  to  ilrlViiy  llii!  ixmciihi-  iiI'  jiiuvidiiig  uixl  prilitiii); 
"  ri'si,'«try  buukv  uiid  liutH,"  &,c,  M.'(iiiia'U  by  tho  ckulioii  luw*. 


Iff 


'■'•J"1 


IN  tlio  Matter  of  a  PRESENTMENT  for  the  County 
WICKI.OVV  INFlllMAllY. 


A  pri-scntincnt  ciinnot  bo  mndo  after  tbc  nssizcn,  ntine  pro  tunr,  wlicrn  the  (rrund 
jury  Imd,  by  ovuriiiglit,  oiniltud  to  tuku  uny  stupsi  ruH|icctiii<r  it  ut  tho  OiisizuH. 


By  the  5  Geo.  III.  c.  20,  s.  6,  the  grand  jury  were 
empowered  to  present  £  100  per  annum  for  the  use  of 
the  county  infirmary;  and  by  the  45  Geo.  III.  c.  Ill,  s. 
1,  they  were  empowered  to  present  a  further  sum  of 
£  500  to  the  governor  and  governesses  of  such  county 
infirmary  for  the  like  purpose. 

The  grand  jury  of  the  County  of  WicMov)  had.  since 
the  passing  of  the  last-mentioned  Act,  invariably  pre- 
sented, at  the  Summer  Assizes,  a  sum  of  £600,  late 
currency,  for  the  support  of  the  infirmary.  It  was  not 
the  habit  to  enter  that  presentment  on  the  schedule,  nor 
were  any  documents  ever  laid  before  the  jury;  but  on 
17 


-1'', 

I!!' 


as 


1  'I 


W 


1^        !:■:•■ 


il 


•**■■ 


Eleven  Judges  {Smith,  B.,  being  absent)  decided 
this  question  unanimously  in  the  negative  (a). 


(a)  The  provisions  of  the  particular  Acts,  upon  which  tliis  question  arose,  appear 
(as  far  as  making  the  presentment  is  concerned)  to  be  superseded  hy  the  6  &,  7  W. 
4,  c.  IIG,  a,  85,  which  provides  for  the  maintenance  of  county  infirmaries. 


■ 


103 


JEBB'S   RESERVED   CASES. 


[November  1 1 


the  second  day  of  the  assizes,  it  was  usually  entered 
with  the  officers'  salaries  and  county  incidents  in  the 
salary  book,  and  signed  by  the  foreman  as  a  matter  of 
course. 

[*103]  At  the  Summer  Assizes  for  WicJdorv  in  1829, 
the  presentment  for  the  year  was,  by  an  omission,  not 
signed  by  the  foreman,  nor  submitted  to  the  grand  jury, 
nor  brought  under  the  consideration  of  the  Court.  In 
the  month  of  October  it  was  first  discovered  that  the 
presentment  had  been  altogether  omitted  at  the  assizes, 
and  an  application  was  made  to  Moore,  J.,  (the  J  adge  of 
Assize),  by  the  foreman  of  the  Grand  Jury  and  others, 
to  fiat  the  presentment  ''nuncp?'o  ti(?ic,^'  upon  an  under- 
taking to  procure  the  signatures  of  the  several  grand 
jurors  to  it;  v/hich  was  done,  with  the  exception  of  two 
or  three  who  had  left  the  country. 

The  opinion  of  the  Judges  was  desired,  whether  this 
presentment  could  then  be  made,  and  the  amount 
included  in  the  general  levy  warrant. 


1829.1 


REX   »..  BARRETT. 


103 


THE  KING  V.  BARRETT,  CONNORS,  and  Two  Others. 


lar 

Iv. 


Wlicro  on  a  trial  at  a  special  commission,  llie  jury  could  not  agree,  and  ai^er  rt- 
inaining  a  long  time  Hhiit  up  were  discliiirgcd  by  the  court  (no  consent  being 
given  by  tlie  counsel  on  either  side),  in  consequence  of  tlie  physician's  report  tlint 
a  longer  confinement  would  endanger  the  lives  of  some  of  tiiem:  Held,  tliat  thoy 
were  properly  so  discharged,  and  tliat  the  prisoners  were  triably  again ;  wM  that 
they  miglit  have  been  tried  at  the  same  commission,  if  the  judge  had  thougiit 
proper. 


At  the  special  commission  for  the  County  of  Cork  in 
1829,  the  prisoners  were  capitally  indicted  before  Pen- 
nefather,  B.,  and  Torrens,  J.,  for  the  crime  of  conspiracy 
*to  murder.  Their  trial  came  on  on  Monday  [*104] 
the  26th  of  October,  at  about  nine  o'clock  in  the  morn- 
ing, and  the  jury  retired  about  eleven  o'clock  on  that 
night.  At  two  o'clock  on  the  following  morning  they 
agreed  to  acquit  Barrett,  and  a  verdict  of  not  guilty  was 
recorded -as  to  him;  but  not  agreeing  as  to  the  other 
prisoners,  they  were  locked  up  for  the  night  and  very 
strictly  kept.  At  ten  o'clock  on  Tuesday  the  Judges 
returned  to  Court,  and  the  jury  were  called  out.  They 
said  they  had  not  agreed,  and  that  although  they  had 
canvassed  the  case  over  and  over  again,  it  was  impossi- 
ble they  could  agree :  they  were  then  sent  back  to  their 
room,  and  kept  as  strictly  as  before;  and  not  having 
agreed  at  two  o'clock,  the  Court  was  adjourned.  At 
six  o'clock  in  the  evening  the  Judges  returned;  the 
opinions  of  the  jurors  remained  as  before,  but  imny  of 


1     » 


m 


i-'ii. 


!1  '  ' 


104 


JEBB'S   RESERVED  CASES.  [NovcmbDr  18 


tliem  complained  of  illness;  and  one  of  them,  whose 
name  was  Allen,  was  severely  attacked  by  gout  in  the 
foot.  Two  pliysicians  were  then  procured  and  duly 
sworn — the  juryman  was  likewise  sworn  to  answer  them 
truly,  and  they  were  sent  into  the  jury  room.  They 
then  examined  the  jurors,  and  especially  Allen.  They 
said  that  three  of  the  jurors  besides  Allen  were  ill,  and 
that  he  was  in  such  a  state  that  he  could  not  be  confined 
another  ni^ht  without  danger  to  his  life,  in  a  room  with- 
out  fire  or  wood.  They  said,  however,  that  there  would 
not  be  much  risk  in  his  remaining  until  ten  o'clock. 
At  ten  o'clock  (the  jury  in  the  mean  time  having  been 
remanded  to  their  chamber)  the  Judges  returned  to 
Court,  counsel  for  the  Crown  and  for  the  prisoners 
attending.  The  same  disagreement  still  subsisting 
among  the  jury,  the  physicians  were  again  directed  to 
examine  them,  which  they  did,  and  reported  that  the 
gout  had  considerably  increased  in  Mr.  Allen,  and  that 
[*105]  he  could  not  *  remain  for  the  night  without  risk 
to  his  life.  Others  of  the  jury  complained  very  much, 
and  they  all  said  that  they  had  remained  for  above 
fifteen  hours  without  any  change  of  opinion,  and  that  it 
was  impossible  they  could  agree.  Counsel  for  the  pri- 
soners objected  to  the  discharge  of  the  jury,  but  said 
they  would  consent  to  their  getting  refreshment.  This 
the  Court  declined  to  accede  to,  and  called  the  attention 
of  the  Solicitor-General  and  the  other  counsel  for  the 
Crown  to  the  course  about  to  be  adopted,  namely,  that 
of  discharging  the  jury.     The  Solicitor-General  replied. 


1829.] 


REX   V.   BARRETT. 


105 


that  they  would  not  interfere  or  give  any  consent,  but 
that  the  course  about  to  be  adopted  met  their  full  con- 
currence; and  thereupon  the  Court  thinking  that  the 
risk  of  the  juror's  life  ought  not  to  be  incurred,  ordered 
the  jury  to  be  discharged,  and  they  were  discharged 
accordingly. 

On  the  following  day  the  Solicitor-General  proposed 
to  put  the  prisoners  Connors  and  the  other  two  prison- 
ers again  on  their  trial.  To  this  their  counsel  objected, 
insisting,  first,  that  the  jury  had  been  improperly  dis- 
charged, and  that  the  prisoners  should  have  the  benefit 
of  the  mistake,  and  could  not  be  tried  again ;  but,  second- 
ly, that  at  all  events,  in  analogy  to  the  case  where  a  jury 
is  discharged  at  the  assizes,  the  prisoner  ought  not  to  be 
tried  until  the  next  gaol  delivery.  After  some  argu- 
ment, the  Court  inclining  to  postpone  the  trial  to  the 
next  gaol  delivery,  the  Solicitor-General  acceded  to  this 
being  done.  The  trial  was  postponed,  the  prisoners 
remaining  in  custody ;  and  the  Court  referred  the  fol- 
lowing questions  for  the  opinion  of  the  Judges : 


m 

i'4  Mt 


■:,m 

',    e 
1     t 


ft: 


■ri 


.ii'-| 


•i 


1 


I' 
I 

2:. 


K 


'111 


1st,  Were  the  jury  under  the  circumstances  properly 
*  discharged,  and  could  the  prisoners  be  tried  [*106] 
ajjain?  it  being  borne  in  mind  that  the  duration  of  the 
commission  was  indefinite,  and  that  it  might  have  been 
prolonged  to  any  number  of  aays  or  weeks. 

2dly,    Supposing  that  the  prisoners  were  properly 


'■"'  J 

■i 

"A 

Ji)  . : 

I'  \  : 

9 

:, 

j,:i              !|    ..' 

4 

■;'      '\'''\ 

W                     '            ''  * 

i 

' »  '           * 

'  if  1 

i 

S        :; 

:M 

fl' 

M 

': 

Bit      1 

,'; 

i|      i 

) 

iiLii 

i^ 

106 


JEBB'S    RESERVED   CASES. 


[November  18 


triable  again,  would  it  liave  been  objectionable  to  have 
tried  them  at  the  same  commission? 

The  twelve  Judges  were  unanimously  of  opinion, 
that  the  jury  were  properly  discharged,  and  that  the 
prisoners  were  triable  again  at  the  same  commission,  if 
the  Judge  had  thought  proper  to  try  them  (a). 


(a)  See  Rex  v.  Edwards,  3  Camp.  207;  Russ.  &  Jty,  234,  S.  C.  (in  which  case, 
one  of  the  Jurymen  having  been  seized  witli  a  lit,  and  carried  out,  and  being  unable 
to  return,  another  man  was  added  to  tiic  eleven,  and  tliey  sworn  over,  and  tlie  tes- 
timony of  tlio  witness  repeated.  Conviction  held  right,  it  appearing  that  the 
prisoner  could  have  again  challenged  the  eleven  jurymen,  had  he  desired.  Sec 
also  the  next  case,  infra,  The  King  v.  Delany,  p.  lOd.) 


THE    KING  V.  DANIEL    DELANY    and    PATRICK 

CHEEVERS. 


Where  the  judge  took  it  upon  himself  to  discharge  the  jury,  in  consequenee  of  a 
statement  upon  oath  by  one  of  the  jurors  (without  the  examination  of  a  medical 
man)  that  his  life  would  be  endangered  by  a  longer  confinement,  and  to  remand 
the  prisoner:  Held,  that  the  judge  had  acted  rightly,  and  that  tlio  prisoner  was 
not  entitled  to  be  disciiarged. 


The  prisoners  were  tried  before  Bushe,  C.  J.,  at  the 
Summer  Assizes  for  the  Queen! s  County,  in  1829,  upon 
an  indictment  charging  a  capital  felony,  under  the 
Whiteboy  Act  {a).     The  trial  began  at  10  o'clock  a.  m., 


(a)  15  &,  16G.3,  c.  21. 


of  a 
lical 
land 
was 


Ithe 

ion 

I  the 

M., 


1829.] 


REX  ».   DELANY. 


108 


on  the  31st  of  July,  and  at  half-past  5  the  jury  retired 
to  consider  their  verdict.     The  learned  Chief  Justice 
left  the  Court  at  7,  p.  m.,  and  returned  at  11  o'clock  at 
night,  when  the  jury  heing  called  out  informed  him 
that  they  had  agreed  as  to  one  of  the  prisoners,  but 
could  not  agree  as  to  the  other;  on  which  they  returned 
to  the  jury  room.      The  Chief  Justice  again  left  the 
Court,  and  returned  at  *  10  the  next  morning,  [*107] 
the  1st  of  August,  when  the  jury,  being  called  out, 
stated  the  same  thing  that  they  had  the  night  before; 
whereupon  by  the  consent  of  the  prisoners,  and  of  the 
counsel  for  the  Crown,  his  Lordship  received  and  re- 
corded the  verdict   which  they  were  ready  to  give, 
which  was  an  acquittal  of  the  prisoner  Cheevers.     His 
Lordship  was  then  about  to  remand  the  jury,  when 
they  informed  him  that  it  was  impossible  that  they 
could  agree;  rn.d  one  of  them,   Mr.  John  Campion, 
having  stated  that  his  life  would  be  endangered  by 
further  confinement,  the  Chief  Justice  had  him  sworn 
and  examined  on  oath ;  and  he  swore,  that  he  was  an 
aged  man,  far  advanced  in  years,  and  had  lately  had  a 
severe  sickness,  from  which  he  was  not  quite  recovered, 
and  that  he  had  suffered  so  much  from  pain  in  the 
night,  that  he  felt  his  mind  and  body  both  unequal  to 
the  discharge  of  his  duty  in  the  case,  and  was  sure  that 
his  life  was  in  danger.     Upon  this  his  Lordship  dis- 
charged the  jury,  and  remanded  the  prisoner  Delany. — 
On  the  4th  of  August,  being  the  first  day  of  the  assizes 
at  Philipstow?i,  whither  Lord  Plunket,  C.  J.  C.  Pleas 


'  i 


'5>:1J 


■-'^.5  ■ 

1  as 

■Jj 

1*  i  \ 

'^ 

i;' 

_»«"<^'** 

4 


♦  i  i 


■i  „ 


-I 


vol  JEBU'S   RESE:IVED   CASES.  [November  18 

(the  other  Judge  of  Assize),  had  gone  on  before,  the 
counsel  for  the  Crown,  at  half-past  two,  p.  m.,  called  on 
Bitshe,  C.  J.,  to  bring  on  again  the  trial  of  Delamj,  in 
whose  case  the  iury  had  been  discharged.  Bushe,  C. 
J.,  asked  the  prisoner's  counsel  if  he  was  ready  for  his 
trial,  and  they  stated  that  he  was  not,  but  that  they 
considered  him  entitled  to  be  discharged,  inasmuch  as 
the  Court  was  not  authorized  to  discharge  the  jury 
merely  on  the  oath  of  one  of  the  jurors,  without  the 
examination  of  a  medical  man  as  to  the  state  of  that 
juror's  health;  and  moved  that  he  should  becischarged, 
which  his  Lordship  refused  to  allow.  At  the  time  the 
jury  were  discharged,  neither  the  prisoner,  nor  his 
counsel,  or  attorney,  who  were  in  Court,  made  any 
[*108]  *  objection;  but  they  were  not  called  on  to  say 
whether  they  consented.  Under  these  circumstances, 
the  learned  Chief  Justice  reserved  the  question,  whether 
the  prisoner  Delamj  was  entitled  to  be  discharged. 


The  twelve  Judges  were  unanimously  of  opinion,, 
that  the  Judge  had  a  discretion  to  discharge  the  jury 
under  the  circumstances  above  stated,  and  to  remand 
the  prisoner ;  and  that  this  discretion  had  been  soundly 
exercised  in  the  present  case. 


Sec  Rex  V,  Barrett,  ante,  103 — the  case  next  preceding,  and  note. 


1830.1 


REX   r.   NOONAN. 


108 


THE  KING  V.  PHILIP  NOONAN  and  Others. 


On  a  conviction  for  administcrinpf  nn  unlawful  onth,  the  prisoner  may  be  sentenced 
to  hard  luhoiir  and  imprisonment,  hy  virtue  of  (lie  51  G.  3,  c.  G3,  s,  2.  Qiiare, 
whctlicr  to  support  an  indictment  imder  tlie  50  U.  3,  c.  102,  s.  1,  fur  administer, 
ing  nn  unlawful  oath,  it  must  be  proved  that  the  country  was  in  a  state  of 
disturbance  ? 


At  the  Spring  Assizes  for  the  Co.  of  Galway,  in  1830, 
Philip  Noonan  and  Michael  Noouan,  -were,  together 
with  others,  tried  before  Smith,  B.,  on  three  indict- 
ments:— 1st,  for  a  riot;  2dly,  for  appearing  armed  by 
night;  and  3dly,  for  administering  an  unlawful  oath. 
The  latter  indictment  was  as  follows: — "The  jurors 
"for  our  Lord  the  King  upon  their  oath  do  say  and 
"  present,  that  Philip  Noonan  and  Michael  Noonan  &c., 
"  in  the  said  county,  labourers,  being  evil  disposed  per- 
"  sons  and  disturbers  of  the  peace  of  our  said  Lord  the 
"  King,  and  not  regarding  the  laws  and  statutes  of  Ire- 
"  land,  nor  they,  nor  any,  or  either  of  them,  being  duly 
" qualified  by  law  to  administer  an  oath,  on  the  16th 
"  day  of  October  in  the  10th  year  of  the  reign  of  our 
"  Sovereign  Lord  George  IV.,  &c.  with  force  and  arms, 
"  at  Guriijmadden,  in  the  County  of  Galwatj  aforesaid, 
"  wilfully,  maliciously,  contemptuously,  unlawfully,  and 
"  feloniously,  did  administer,  and  cause  to  be  adminis- 
'•  tered,  to  one  Thomas  Eourke,  a  true  and  *  faith-  [*109] 
•*ful  subject  of  our  said  Lord  the  King,  a  certain 
18 


'  *'■    1 
li'illj 

II  f  I' 

11: 


:ti 


A 


i«l« 

u 


:hl 


IS 


I 


*;.  !■ 


ii,-:t, 


-^ 


T^ 


100 


JEBB'S   RESERVED   CASES. 


[May  12 


'I  I 


K     :il 


"oath  then  and  there  accordingly  taken  by  the  said 
"  Thomas  Bourke,  importing  and  then  and  there  in- 
"  tended  to  hind  him,  the  said  Thomas  Bourke,  the  per- 
"  son  then  and  there  taking  the  same,  not  to  prosecute 
"or  give  evidence  against  certain  persons  for  certain 
"  illegal  acts  (a)  done  by  them  against  the  peace  of  our 
"  said  Lord  the  King,  his  crown  and  dignity,  and  con- 
"  trary  to  the  form  of  the  statute  in  that  case  made  and 
"provided."  The  jury  found  all  guilty  on  the  first 
indictment:  they  fouria  Philip  Noonan  and  Michael 
Noonan  guilty  on  the  third;  and  on  the  second  they 
acquitted  all,  on  the  ground  of  its  not  appearing  to 
them,  that  at  the  time  of  the  offence  there  were  illegal 
confederacies  or  associations  on  foot,  or  that  the  neigh- 
bourhood was  in  a  state  of  disturbance. 

The  three  indictments  were  founded  upon  one  and 
the  same  transaction,  which  occurred  o:.i  the  16th  of 
October,  1829.  The  evidence  in  support  of  the  third 
indictment  was,  that  the  prosecutor  did  not  know  who 
administered  the  oath,  but  that  Philip  Noo?ia?i  and 
Michael  Noonan  were  present,  and  within  hearing. 
The  oath  was,  "never  to  prosecute."  The  learned 
Baron  told  the  jury,  that  if  they  believed  Philip  and 
Michael  Noonan  to  have  been  aiding  and  assisting,  the 
indictment  was  supported.  The  jury  strongly  recom- 
mended the  prisoners  to  mercy,  on  account  of  a  good 

{a)  Qu<Bre,  wlictlier  this  is  a  sufBcicnt  description  of  the  "purport  or  object"  of 
the  oath.— Sec  50  G.  3,  c.  102,  s.  4;  and  87  G.  3,  c.  15,  s.  7. 


1830. 


REX  V.  NOONAN. 


109 


i*  ,1 


to 


rned 
land 
the 
bom- 
rood 

ict"  of 


character  which  was  given  them  by  respectable  wit- 
nesses, and  of  their  state  of  health;  and  to  this  recom- 
mendation the  learned  Baron  was  disposed  to  attend, 
but  on  looking  into  the  statute  27  Geo.  III.  c.  15, 
*  (on  which  he  considered  that  the  indictment  [*110] 
was  founded)  a  doubt  occurred  to  him  as  to  whether  the 
punishment  was  discretionary;  or  whether  the  statute 
should  be  considered  as  prescribing  a  sentence  of  trans- 
portation for  the  convicts'  life.  After  conferring  with 
Burton,  J.,  it  was  agreed,  that  the  case  should  be  re- 
served for  the  consideration  of  the  Judges.  The  learned 
Baron  accordingly  pronounced  no  sentence.  Upon  sub- 
mitting the  case  to  the  Judges,  the  learned  Baron  sug- 
gested, that  if  the  third  indictment  was  to  be  considered 
as  supported  by  the  50  Geo.  III.,  then  it  seemed  that 
the  sentence  must  be  transportation  for  the  convicts' 
life ;  but  that  on  the  construction  of  that  statute,  a  doubt 
might  arise,  as  to  whether,  towards  bringing  it  into  ope- 
ration, there  must  not  exist  illegal  confederacy,  and  the 
oath,  perhaps,  be  connected  with  the  existence  of  such 
confederacy.  The  verdict  on  the  second  indictment, 
and  the  grounds  of  it,  negatived  the  existence  of  such  a 
state  of  things,  and  disconnected  the  transaction,  on 
which  alone  the  several  indictments  were  founded,  from 
illegal  confederacy  and  combination.  But  if  the  third 
indictment  were  founded  on  the  27  Geo.  III.,  it  did  not 
seem  that  the  existence  of  any  illegal  association  was 
requisite  to  support  the  verdict:  and  the  question  in 
this  latter  case  would  be,  whether  the  sentence  was  dis- 


m 


%n 


i 
I 


4 


a 


<  11 

iii 


i 

'25 


il  ■ 


^l^    ' 


no 


JEBB'S   RESERVED  CASES. 


[Trin.  Term 


cretionary,  or  must  be  transportation  for  the  convicts' 
life. 


The  Judges,  without  directly  deciding  the  questions 
proposed,  gave  their  opinion,  that  this  was  a  case  in 
which  the  51  Geo.  III.  c.  63,  s.  2,  authorizing  a  sentence 
of  hard  labour  and  imprisonment,  might  be  acted  upon. 


[*111]  IN  the  Matter  of  u  PRESENTMENT  to  the  Clerk  of  the 
Peace  in  the  Co.  MONAGIIAN,  for  registering  Arms. 


A  presentment  to  the  clerk  of  the  peace  for  his  trouble  in  registering  Arms  under 
the  47  Geo  3,  c.  HI  (revived  by  10  Geo.  4,  c.  47),  held  to  bo  illegal,  by  force  of 
the  4  Geo.  4,  c.  43,  s.  1,  (6  &,  7  Wni.  4,  c.  116,  s.  110.) 


At  the  Spring  Assizes  for  the  County  Monaghan  in 
1830,  the  Grand  Jury  made  thr  following  presentment, 
— "  We  present  to  Robert  Smith,  Esq.,  the  sum  of 
"  £  9  45.  Id.  for  his  trouble  in  the  execution  of  his  duty 
"  in  registering  arms  pursuant  to  the  47  Geo.  III.  c.  64, 
"revived  by  the  10  Geo.  IV.  c.  47." 


The  statute  47  Geo.  III.  c.  54,  s.  47,  enacted  that  it 
should  be  lawful  for  Grand  Juries  at  each  Assizes,  and 
they  were  thereby  required,  to  present  such  sum  to  be 


in 

Mil, 

of 

luty 

54, 


at  it 
and 
o  be 


1830.]     PRKSENTMENT   FOR   REGISTERING    ARMS.      Ill 

raised  off  the  County  as  might  be  required  to  reward 
the  clerks  of  the  peace  for  their  trouble  in  executing  the 
act,  not  exceeding  ten  pounds  at  any  one  Assizes.  This 
Act  was  continued  and  amended  by  the  50  Geo.  III.  c. 
109,  and  was  again  continued,  as  so  amended,  by  the 
63  Geo.  III.  c.  78,  and  afterwards  by  the  57  Geo.  III. 
c.  '31.  It  was  afterwards  revived  and  continued  by  the 
1  Geo.  IV.  c.  47,  and  further  continued  for  two  years 
from  the  end  of  the  then  session  of  parliament,  and  from 
the  expiration  of  such  five  years  until  the  end  of  the 
then  next  session  of  parliament.  The  last  mentioned 
statute  was  passed  on  the  24th  of  March,  1823,  so  that 
it  continued  the  Arms  Act,  viz.  the  47  Geo.  III.  to  the 
end  of  the  session  of  the  year  1829;  and  on  the  19th  of 
June,  1829,  by  the  10  Geo.  IV.  c.  47,  the  Acts  47  &l  58 
Geo.  III.  were  continued  for  one  year  from  the  passing 
of  the  Act  until  the  end  of  the  then  next  session  of  par- 
liament. On  the  27th  of  June,  1S23,  the  *  Act  [*112] 
(4  Geo.  IV.  c.  43,)  to  regulate  the  payment  of  the  pub- 
lic officers  of  counties  passed,  whereby  it  was  enacted 
(s.  1,)  that  all  clerks  of  the  crown,  clerks  of  the  peace, 
and  all  other  officers  and  persons  for  the  payment  and 
remuneration  of  whose  duties,  salaries,  or  expenses,  any 
presentment  is  required  to  be  made,  under  any  Act  or 
Acts  in  force  at  the  time  of  the  passing  of  that  Act, 
should  be  paid  by  annual  salaries  only ;  and  it  declared 
it  to  be  unlawful  for  any  Grand  Jury  in  any  case  to  pre- 
sent any  sum  or  sums  for  any  such  officer,  other  than, 
the  salary  set  forth  in  the  table  to  the  statute. 


W 

\.  ll 


fr- 


.4^- 


119 


jrinn-s  reserved  cases. 


[July  3 


The  Acts  of  47  &,  60  Geo.  III.  having  been  in  force 
at  the  time  of  the  passing  of  the  4  Geo  IV.  c.  413,  Moore, 
J.,  (the  Judge  of  Assi/e,)  conceived  that  the  clerk  of  the 
peace  was  precluded  from  claiming  fees  for  registering 
arms  pursuant  to  the  statutes.  As  however  the  clerk  of 
the  peace  insisted  upon  his  right  to  the  sum  presented 
by  the  Grand  Jury,  the  learned  Judge  reserved  the  case 
for  the  opinion  of  the  Judges. 

The  Judges  were  unanimous  against  the  present- 
ment, (a). 

(a)  The  acta  rcgutatinjr  the  rcgiutry  of  arms,  tncntinncd  in  lliix  case,  Imvo  been 
(as  amended  by  tlio  1  &  2  Wm.  IV,  c.  47,)  continued  by  ii  siicccHsion  of  uctH,  the 
last  of  wliich  is  the  3  &  4  Vic.  c,  3ii,  continuin)r  tlicin  for  onu  your,  and  from  thonco 
to  tiic  end  of  the  next  xciiHion. — The  llOth  Huetion  of  tiic  6  &.  7  Wni.  IV.  c.  1 10, 
corresponds  with  tho  4  Geo.  IV.  c.  43,  s.  1. 


•'(  I 


ill' 


[*113]       THE  KING  V.  TERENCE  CUSIILAN. 

Where  tho  prisoner  was  present  at  a  sale  of  goods  by  tho  prosecutor  to  a  third 
person  (wlio  was  introduced  by  liie  prisoner  to  tho  prosecutor  as  a  purchaser,) 
and  took  up  a  Bank  Note  given  by  that  jwrson  in  payment,  saying  tiiut  it  was 
good,  and  that  he  would  make  it  good;  and  desired  the  prosecutor  to  write  liis 
(prisoner's)  nnmc  upon  it : — Tiio  note  proving  a  forgery,  htld,  that  tliero  was 
ButKcient  evidence  of  uttering  by  the  prisoner. 


in  I 


At  the  Spring  Assizes  for  the  County  of  Monaghan,  in 
1830,  before  Moore,  J.,  Terence  Ciishlan  was  indicted, 
first,  for  feloniously  uttering  a  forged  note  of  the  Bank 


m 
jted, 
tank 


1830.' 


REX  B.  rUSIILAN. 


113 


of  Ireland;  secondly,  for  having  in  his  possession  such 
note  kiiowi!ig  it  to  have  been  forged;  and  thirdly,  for 
passing  a  base  half-crown. 

The  evidence  to  support  these  charges  was  as  follows: 
Bernard  M^Mahon  being  examined,  said,  that  a  man 
named  Hannigan  had  a  cow  to  sell  at  the  fair  of  Drum ; 
the  prisoner  and  two  other  men  were  bargaining  for 
her,  and  they  agreed  for  the  price  of  two  pounds;  they 
went  into  a  public  house  to  pay  the  money;  witness  did 
not  go  in;  they  came  out  again  together,  and  Hamiiyan 
said  in  their  presence  that  he  had  been  paid  for  his  cow, 
and  that  he  had  treated  the  men  to  drink ;  the  prisoner 
said  that  was  the  fourth  cow  they  had  bought  in  that 
fair.  One  of  the  three  men  called  himself  Elrvm,  and 
was  so  called  by  the  prisoner;  it  afterwards  appeared 
that  his  real  name  was  Brown. 

Hannigan,  the  owner  of  the  cow,  being  sworn  and 
examined,  said,  that  having  met  the  prisoner  in  the  fair, 
witness  asked  him  to  buy  the  cow,  as  he  had  known 
him  buy  cows  before ;  he  said  he  was  out  of  the  habit 
of  buying  cows,  but  he  would  get  him  a  chap;  and  he 
went  away,  and  returned  with  the  other  two  men. 
Brown,  who  went  then  by  the  name  of  Elwin,  asked  the 
price;  witness  said,  two  pounds  ten  shillings;  the  pri- 
soner said  two  pounds  *  would  be  a  fair  price,  [*114] 
and  he  would  allow  no  more.  They  agreed,  and  the 
prisoner  told  Brown  (then  called  Elwin)  to  pay  witness 


i 


■:»■, 


y^!' 


r    '1 


114 


JEBB'S   RESERVED  CASES. 


[July  3 


"i|i 


speedily,  as  he  had  a  bad  road  to  go  home ;  witness  re- 
ceived in  payment  a  Bank  of  Ireland  note  for  £  1  10s.  Od., 
and  ten  shillings  in  change.  It  was  Brown  (who  gave 
his  name  as  El  win)  that  laid  the  money  down  before 
witness  on  the  table,  and  appeared  to  bo  the  owner 
of  it.  The  prisoner  took  up  the  note,  and  said  it  was 
good,  and  that  he  would  make  it  good,  but  that  he  could 
not  write,  and  desired  witness  to  write  his  (the  pri- 
soner's) name  on  it  after  Elwin's,  which  he  did.  This 
took  place  on  Tnesdaij,  and  on  the  Saturday  after  he 
found  the  note  Avas  bad ;  he  then  went  to  the  prisoner 
(who  had  promised  to  find  Elwin  for  him,  and  him  for 
El  win,  if  any  thing  was  wrong  on  either  side),  but  he 
gave  hirj_  an  evasive  answer ;  witness  then  asked  the 
prisoner  who  the  third  person  was;  he  told  him  his 
name  was  John  Finny,  and  also  told  him  where  he 
lived,  but  witness  could  never  find  him  at  home. 


Mr.  Cooke,  from  the  Bank,  proved  the  note  to  be  a 
forgery,  and  half-a-crown,  part  of  the  ten  shillings,  to  be 
base  coin. 


The  Jury  found  the  prisoner  guilty  of  the  uttering 
under  the  first  indictment,  and  acquitted  him  of  the 
charges  in  the  other  two;  and  the  actual  possession  of 
the  note  by  the  prisoner  being  negatived  by  this  finding, 
the  learned  Judge  reserved  for  the  consideration  of  the 
twelve  Judges  the  question,  wiiether  on  the  evidence 
there  was  such  a  constructive  possession  of  the  note  by 


1830.] 


REX   r.   WOODS. 


114 


the  prisoner  as  would  support  the  capital  indictment 
for  uttering;  it  appearing  that  Brown,  who  was  called 
Elrvin,  had  in  fact  the  possession,  and  delivered  it  in 
payment  in  the  first  instance. 


lii 


e 


)e  a 
be 


*  Eight  Judges  being  present,  six  of  them  [*115] 
(O'Grady,  C.  B.,  Lord  Plunket,  C.  J.  C,  Pleas,  Bur- 
ton, J.,  Vandeleur,  J.,  Johnson,  J.,  and  Pennefather, 
B.,)  held  that  the  conviction  was  right.  Busiie,  C.  J., 
and  MoorE;  J.,  held  that  it  was  bad. 


The  aiitliorit}  of  this  case  supported,  negatively,  in  Hex  v.  Soarcs,  Russ.  &  Ry. 
p.  25.  Rex  V.  Badcoch,  irf.  249.  Rex  v.  Else,  id.  142.  Rex  v.  Davis,  113.  Where 
the  doctrine  of  constructive  presence  was  licid  narrow;  and  accordingly,  crimi- 
nals indicted  as  principals,  for  "uttering,"  discharged  on  the  ground,  that  though 
closely  connected  witli  tlie  actual  iittcrer,  they  had  not  hecn,  in  fact,  present.  Sec 
also  Rex  V.  Palmer,  id.  72,  where  the  statutory  words  "disposing  and  putting 
away"  appear  to  have  been  held  more  extensive  than  "uttering,"  and  a  criminal 
jicld  riglitly  convicted  on  thcra  when,  perhaps,  he  could  not  have  been  on  the  count 
for  uttering. 


i'   ^ 


T'' 


i:il 


Iff 


the 


of 


bn 


tlie 


jnce 


le 


by 


THE  KING  V.  ANNE  WOODS. 

He.la  that  a  pr'if/f^.r  might  bft  convicted  of  uttering  a  forged  instrument,  although 
the  insLruuient  when  ijiven  in  evidc  ncc  was  so  mutilated  that  it  could  not  be 
decyphercd  withoirf  Uw  aid  of  a.fac  $imile. 

At  tlie  Spring  Assizes  for  the  County  of  Antrim  in 

1830,  Arme  Woods  was  indicted  and  tried  before  Moore, 

J.,  on  an  indictment  for  feloniously  uttering  a  forged 
19 


f 


U 

; 

fl  K 

} 

1 '  I 

' 

\ 

i.  • 
■  1'' 

!     ■ 

. 

Jii 

J 

i 

fl6 


JEBB'S  RESERVED  CASES. 


[July  3 


promissory  note  for  the  payment  of  moiicy,  purporting 
to  have  been  made  on  behalf  of  the  court  of  Directors 
of  the  Royal  Bank  of  Scotland,  for  one  guinea,  dated 
4th  Nov.  1826,  with  intent  to  defraud,  &c. 

It  appeared  in  evidence  that  the  prisoner  passed  the 
note  in  question  in  a  shop  in  Belfast,  in  payment  of  a 
few  sliillinffs'  worth  of  cfoods.  The  note  being  consi- 
dered  bad,  and  the  poUce  having  been  sent  for,  the 
prisoner  asked  to  be  allowed  to  see  it,  and  when  pro- 
duced, she  snapped  at  it  and  put  it  in  her  mouth;  the 
officers  forced  it  out  of  her  mouth,  and  it  was  broken  in 
two  pieces.  On  the  note  being  produced  in  court,  it 
was  lacerated  and  deficient  in  several  particulars,  as 
was  proved  by  Mr.  Archibald  Bonner,  who  signed  the 
notes  of  the  Royal  Bank  of  Scotland.  This  witness, 
after  stating  his  signature  to  be  a  forgery,  and  that 
the  note  purported  to  be  for  one  guinea  («),  said,  that 
[*116]  the  *word  "guinea"  in  the  body  of  the  note 
was  entirely  gone,  except  the  G  and  half  the  letter 
U;  that  the  words  "office  here"  were  wanting  after  the 
word  "their,"  that  after  the  word  "order"  half  the  letter 
fin  the  word  "of"  was  wanting,  that  the  word  "court" 
was  wanting  altogether,  that  the  three  last  letters  in  the 
word  "Directors"  were  wanting,  that  in  the  word  "ac- 
count" the  letters  "ac"  were  wanting,  that  the  P  after 

(a)  The  note  lind  contained  these  words  and  figures — "Ediiihurgli,  4th  Nov. 
"  182G.  One  Guinea.  Number  Hy.  Tiie  Royal  Hunk  of  Scotl.T  J  promise  to  j)ay 
^'■Andrew  Boijii.  or  the  hearer,  One  (^iiiinea  on  demand,  at  tliiir  otHcc  here.  IJy 
"  order  otthc  Court  of  Directors,  James  Moore,  P.  Acct.,  Arch.  Bonner,  P.  Cashier." 


IN  til 


1830.1 


PRESENTMENT   FOR   A  COURT  HOUSE. 


116 


Ih  Nov. 

to  pay 
Jc.    By 

shier." 


witness's  signature  (which  stood  for  pro)  and  also  the 
two  first  letters  of  the  word  "Cashier"  were  wanting. 
He  said  further  that  the  practice  was  to  number  the 
notes  diagonally  at  two  of  the  corners,  and  that  the 
number  (212)  was  wanting  on  one  of  the  corners,  and 
that  in  fact  the  note  could  not  be  decyphered  without 
the  aid  of  ^facsimile. 

The  learned  Judge  left  the  case  on  this  evidence  to 
the  Jury,  who  found  the  prisoner  guilty,  on  the  under- 
standing that  the  opinion  of  the  Judges  should  be  taken, 
whether  the  instrument  so  mutilated  was  sufficient  in 
point  of  law  to  sustain  the  indictment. 

Eight  Judges  (Busiie,  C.  J.,  Loiiu  Plunket,  C.  J. 
C.  Pleas,  O'Grady,  C.  B.,  Moore,  J.,  Johnson,  J.,  Bur- 
ton, J.,  Pennefather,  B.,  and  Vandeleur,  J.,)  having 
met,  were  unanimously  of  opinion  that  the  conviction 
was  right.  A  facsimile  of  the  note  was  produced  by 
MooRE,  J.,  at  the  meeting. 


IN  the  Matter  of  a  PRESEXTMEXT  for  a  COURT  [*117] 
HOl'SE  in  the  Cu.  of  CORK. 

A  traverse  does  not  lie  to  a  piwantMBnt  fnr  a  new  County  Court  House  duly  mo^ 
uMoiritagkbtlie  J3  G.  III.  c.  131. 


The  Grand  Wmif0tttlm.  County  of  Corh,  at  the  Spring 
Asstzes  in  1831,  made  a  presentment  for  building  a 


i!"il!y 


mi 


n 


wmm' 


fit'  ?*■ 

•3 


^iii 


:*5'!i 


■-   iiff 


:2C    I 

3ff 


Ir 


l\ 


trsr 


H 


117 


JEBB'S  RESERVED   CASES. 


[April  27 


new  Court  House  upon  a  plot  of  ground  specified  in 
the  presentment;  and  to  this  presentment  a  traverse 
was  tendered  on  behalf  of  some  landholders  of  the 
county,  principally  on  the  ground  of  an  objection  to 
the  site. 


Jebb,  J.,  before  whom  the  presentment  was  made, 
having  examined  the  presentment,  and  compared  it 
with  the  statute  53  Geo.  III.  chap.  131,  found  it  to 
correspond  therewith  in  every  particular;  and  his 
opinion  was  that  a  traverse  to  such  a  presentment  did 
not  lie.  At  the  solicitation  of  counsel,  however,  he 
reserved  the  point  for  the  consideration  of  the  Judges; 
and  the  question  accordingly  was,  whether  a  traverse 
lies  to  a  presentment  for  a  new  county  Court  House, 
duly  made  according  to  the  statute  53  Geo.  HI.  chap. 
131,  and  the  other  statutes  on  the  subject? 

The  Twelve  Judges  unanimously  decided  against 
the  right  to  traverse  in  this  case  (a). 


'*  The  regulations  of  the  53  G.  III.  c.  131,  seem  to  be  still  in  force,  subject  to 
fi.  G^,  and  the  follow  iiig  sections,  of  G  &.  7  Wm.  IV.  chap.  IIG.  See  also  2  &  3  Vic. 
chap.  50,  8. 11. 


I 


1831.] 


REX  ».  M'DERMOD. 


118 


*THE  KING  V.  JOHN  M'DERMOD  and  PATRICK 

M'GANN. 


linst 


A  notice  posted  in  a  public  place  and  in  the  following  terms:  "  Mr.  B,,  take  notice 
"tiiat  Terry  and  iiis  men  will  pay  you  a  visit  in  ten  days.  I  would  recomnicnd 
"  the  Gcraghtys  of  Killlgcnnn  to  lower  the  con-acro  rent,  or  I  will  write  to  liis 
"Excellency;"  signed  "Terry  and  his  mother,"  is  not  in  itself  a  notice  tending 
to  excite  a  riot  or  tumultuous  vietling  or  an  unlawful  combination  or  confederacy 
under  27  G.  III.  c.  15,  s.  9. 


At  the  Summer  Assizes  for  the  County  of  Galway  in 
1831,  John  M'Dermod  and  Patrick  J^PGann  were  tried 
before  Burton,  J.,  on  an  indictment  grounded  on  the  27 
G.  III.  c.  15,  s.  9,  by  which  it  is  enacted,  "  That  if  any 
*'  person  shall  print,  write,  post,  publish,  or  knowingly 
"  circulate,  or  deliver,  or  shall  cause  or  procure  to  be 
"printed,  written,  posted,  published,  circulated,  or 
"  delivered,  any  notice,  letter,  or  message,  exciting,  or 
"tending  to  excite  any  riot,  tumultuous  meeting,  or 
"unlawful  combination  or  confederacy;  every  such 
"  person  being  by  due  course  of  law  thereof  convicted, 
"shall  be  adjudged  a  felon,  and  suffer  death  as  in  cases 
"  of  felony  without  benefit  of  clergy." 


''L 


3 


m 


Si  J 


i  ''Id 


The  first  count  of  the  indictment  charged  the  prison- 
ers with  having  on  the  23d  of  April,  in  the  first  year 
of  the  present  King,  at  Mount  Bellerv  Bridge,  feloniously 
posted  a  certain  notice  tending  to  excite  a  riot,  which 
notice  was  set  out  in  the  indictment,  and  was  as  follows : 


:,.. ..  * 


! 


tl 


ri  ..^ 


118 


JEBB'S  RESERVED  CASES. 


[November  30 


",vi 


"  Mr.  Brittan,  take  notice  that  Terry  and  his  M 

"  (torn)  will  pay  you  a  visit  in  ten  clays.     I  would 

"  recomm (torn)   the   Geraghtys  of  Killigenan  to 

"  lower  the  con -acre  rent,  or  I  will  write  to  his  Excel- 
•'  lency." 

"  Terry  and  his  Mother," 
*'&c.,  &c.,  &c." 
Another  count  stated  the  tendency  of  the  notice  to  be 
"  to  excite  an  unlawful  combination  and  confederacy," 
and  another  "  to  excite  a  tumultuous  meeting,"  and  two 
[*119]  other  *  counts  varied  the  description  of  the  notice 
by  supplying  the  letters  supposed  to  be  torn  off.  A 
notice  was  produced  which  was  exactly  as  described  in 
the  first  count  of  the  indictment,  and  was  proved  to 
have  been  posted  by  the  prisoners  (who  were  watched 
and  observed  by  the  witnesses  in  the  act)  at  four  o'clock 
in  the  morning  of  the  day  specified  in  the  indictment, 
on  a  milestone,  which  was  on  the  battlements  of  the 
bridge  at  Mount  Bellew.  It  was  also  proved  that  about 
that  time  many  threatening  notices  were  posted  in  that 
part  of  the  country,  but  no  other  evidence  was  given  of 
public  disturbance. — On  the  part  of  the  prisoners  it  was 
suffffested  that  the  notice  was  not  in  its  terms  such  a 
notice  as  is  described  or  contemplated  by  the  statute. 
On  the  part  of  the  crown  it  was  desired  that  the  case 
should  be  left  to  the  Jury,  and  that  in  case  of  a  convic- 
tion, the  question  should  be  reserved  for  the  considera- 
tion of  the  Judges.  It  was  accordingly  left  to  the  Jury 
to  consider  whether  the  notice  was  posted  with  the 


!' 


i 


1831. 


REX   V.   M'CUE. 


119 


intention  and  had  a  tendency  to  excite  auy  or  either  of 
the  consequences  specified  in  the  indictment.  The 
Jury  found  the  prisoners  guilty,  and  Burton,  J.,  respited 
the  judgment  until  the  opinion  of  the  Judges  upon  the 
question  should  be  obtained. 


Eleven  Judges  being  present  {Torrcns,  J.,  absent), 
all  except  Foster,  B.,  were  of  opinion  *hat  the  evidence 
ought  not  to  have  been  left  to  the  Jury,  and  that  the 


conviction  was  wrong. 


fury 
the 


*THE  KING  V.  ROBERT  M'CUE. 


[*120] 


The  receiver  of  a  stolen  promissory  note  wns  indicted  for  a  substantive  felony  under 
the  9.  G.  IV.  c.  55,  s.  47,  and  a  witness  for  the  Crown  proved  that  lie  (witness) 
had  stolen  the  note;  but  it  appeared  on  his  cross-examination  that  lie  had  been 
tried  for  the  larceny  and  acquitted,  a  fact  of  which  the  Judirc  had  Judicial  know- 
Icd;je.  Held,  that  the  acquittal  of  the  principal  was  not  conclusive  evidence  of 
his  innocence,  but  that  the  Judj;c  was  right  in  leaving  to  the  Jury  the  fact  of  the 
acquittal  together  with  the  witness's  averment  of  tiie  Ihcll. 


The  prisoner  was  tried  at  the  City  Sessions  Court  on 
the  2Gth  of  July,  1831,  before  Frederick  Sharv,  Esq., 
Recorder  of  Dublin,  on  an  indictment  as  for  a  "  substan- 
tive felony"  under  the  9  Geo.  IV.  c.  55,  s.  47,  for  having 
received  a  promissory  note  of  the  Bank  of  Ireland  for 
£  100,  the  property  of  Robert  Dudley,  and  which  was 
stated  in  the  indictment  to  have  been  stolen  by  Patrick 
Curran  and  others.     Patrick  Ciirran  was  produced  as 


-(«  "^ 


U  ^ ' 


ISO 


JEBB'S   RESERVED   CASES.  [November  30 


!l; ! 


"I 


a  witness  upon  the  trial  to  prove  the  larceny  by  him- 
self and  the  other  persons  named  in  the  indictment. 
Upon  his  cross-examination  he  admitted  that  he  and 
those  persons  had  been  previously  tried  for  the  stealing 
of  the  note,  and  acquitted.  The  learned  Recorder  was 
aware  that  the  fact  was  so,  as  their  trial  took  place  before 
him;  and  he  saved  the  point  without  requiring  the  record 
of  acquittal  to  be  made  up.  Counsel  for  the  prisoner 
contended  that  the  acquittal  of  the  principals  was  con- 
clusive of  their  innocence,  and  that  upon  that  ground 
the  Jury  in  the  present  case  should  be  directed  to  acquit 
the  prisoner.  The  learned  Recorder,  however,  told  the 
Jury  to  consider  the  fact  of  the  acquittal  of  the  principals 
together  with  the  other  evidence  which  had  reference 
to  the  averment  of  their  having  stolen  the  note,  and  that 
if  they  were  not  upon  the  whole  satisfied  of  the  guilt  of 
the  principals,  they  should  acquit  ttie  prisoner;  but 
that  if  they  came  to  the  conclusion  that  the  individuals 
charged  as  principals  had  in  point  of  fact  stolen  the 
note,  and  that  the  prisoner  had  received  it,  knowing  it 
to  have  been  stolen,  then  they  should  find  him  guilty. 
The  Jury  without  hesitation  returned  a  verdict  of  guilty, 
and  the  prisoner  (being  an  old  offender)  was  sentenced 
[*121]  to  7  years'  *  transportation :  but  execution  of  the 
sentence  was  stayed  in  order  to  obtain  the  opinion  of 
the  Judges  on  the  propriety  of  the  conviction  under  the 
circumstances  above  stated. 

The  prisoner's  counsel  referred  to  2  Hale,  P.  C,  Book 


being 


:\i 


1832.] 


REX  V.  STONAGE. 


191 


2,  c.  29,  s.  36 ;  and  to  Foster's  Crown  Law,  pp.  343  & 
345  (Dublin  edition,  1791),  Discourse  3,  c.  1,  s.  1.— The 
learned  Recorder  referred  the  Judges  to  the  cases  of  the 
Ki?i(j  V.  Smith,  1  Leach  288,  and  the  King  v.  Bush, 
Russ.  &-  Ry.  372,  as  bearing,  in  principle,  upon  the 
present  case. 


',«! 

w 

i 

n 

tl 


the 
of 


m 


the 


look 


Eleven  Judges  {Torrens,  J.,  being  absent)  unani- 
mously held  that  the  conviction  was  right. 

See  Rex  v.  Turner,  1  Moo.  347. 


THE  KING  V.  WILLIAM  STONAGE. 


An  exemplification  of  the  sentence  of  degradation  under  the  Episcopal  seal  is  not 
necessary  evidence  to  support  an  indictment  against  a  pci'son  alleged  to  be  a  de- 
graded clergyman,  for  celebrating  a  marriage  between  Protestants. 


At  the  Summer  Assizes  for  the  county  of  Donejal,  in 
1831,  William  Stonage  was  tried  before  Moore,  J.,  on 
an  indictment  which  charged  that  he  being  a  degraded 
clergyman,  on  the  4th  of  February,  1  Wm.  IV.,  unlaw- 
fully and  feloniously  did  celebrate  a  marriage  between 
one  William  Freston  and  one  Elizabeth  Baldricke,  they 
being  Protestants,  against  peace  and  statute  (a).     A 


(a)  13  Geo.  I.  c.  3. 


20 


^•*'ir 

1 

!i;. 

.<£' 

Ii 

I*** . 

.     I 

'3 

H 

39 

S" 

^ 

^ 

■•V 

:i 


•k 


i 


„#^* '  **• 


Jl^  :': 


%  li 

U  ! 


191 


JEBB'S    RESERVED   CASES. 


[January  18 


question  was  reserved  for  the  consideration  of  the  Judges 
with  respect  to  the  le<Tality  of  the  evidence  adduced  to 
sustain  the  averment  that  the  prisoner  was  at  the  time 
a  degraded  clergyman,  which  was  as  follows: 

[*12'2]  Richard  Bahington,  one  of  the  deputy  regis- 
trars of  the  diocese  of  Derrfj,  said  that  it  was  his  duty 
to  keep  a  list  of  the  clergy  of  the  diocesi  and  of  all  the 
proceedings  in  the  Diocesan  Court;  he  produced  that 
list  and  certain  proceedings,  and  read  from  them  that 
the  nrisoner  had  been  a  very  old  licensed  curate  in  the 
diocese;  that  in  October  1829,  he  was  cited  to  answer 
a  charge  for  having  celebrated  marriage  clandestinely, 
not  having  a  faculty  to  celebrate  marriage,  to  which 
citation  he  appeared  in  person;  th'-.t  he  was  afterwards 
cited  to  hear  sentence,  to  which  citation  he  also  ap- 
peared; and  that  upon  the  29th  of  August,  1829,  sen- 
tence, whereby  he  was  deprived,  deposed,  and  degraded, 
was  pronounced. 

Mr.  George  Franks  proved  his  own  handwriting  as 
proctor  of  office,  and  also  the  Bishop's  signature  to  the 
before  mentioned  sentence;  he  said  he  had  practised  for 
15  years,  and  had  never  known  any  instance  of  a  sen- 
tence to  have  been  taken  out  or  to  have  been  used  as 
evidence  in  a  criminal  court,  and  that  he  had  never 
seen  a  sentence  with  the  Episcopal  seal  annexed. 


I  I 


On  the  part  of  the  prisoner  it  was  insisted,  that  to  be 


it 


;  as 

the 
Id  for 

sen- 
?d  as 

lever 


183J.]  RRX  I..   STONAGE.  M 

evidence  in  a  court  of  law  the  sentence  should  have 
h^nn  produced  under  the  Episcopal  seal  of  the  Diocesan, 
and  that  proof  of  his  sitruiUure  to  the  sentence  in  an 
official  book  was  not  the  proper  evidence.  The  learned 
Judge  allowed  the  evidence  to  jro  to  the  Jury  (wiio 
found  the  prisoner  guilty),  and  respited  the  judgment 
in  order  to  have  the  opinion  of  the  Judges  whether  legal 
evidence  was  given  of  the  sentence  of  degradation,  or 
whether  an  exemplification  of  the  sentence  under  the 
Episcopal  seal  was  the  proper  proof  to  sustain  the  aver- 
ment. 

*TiiE  Judges  first  met  to  consider  this  case  [*123] 
in  Michaelmas  Term,  1831,  when  the  general  opinion 
seemed  to  be  that  the  evidence  was  sufficient.  Penne- 
FATiiER,  B.,  considered  it  insufficient.  The  case,  how- 
ever, was  adjourned  until  the  next  term  (Hilary,  1832), 
in  order  that  the  document  which  had  been  given  in 
evidence  might  be  produced  to  the  Judges.  At  their 
second  meeting,  January  18,  1832,  Eleven  Judges 
{Pennefather,  B.,  being  absent)  ruled  that  the  conviction 
was  good.  The  document  given  in  evidence  was  not 
produced  (a). 

(«)  Sec  Rex  V.  Sandya,  post,  166. 


m\ 


H  1 


3 


«l' 


..A 


',5 


7 


''I 


J 


*"• 


'i 


10 


be 


IM 


JEBD'S  RESERVED  TABES. 


[April  18,  ko 


! 


THE  KING  V.  DOOLIN  and  Others. 


H 


Whtro  u  witncHH,  oftcr  linving  been  examined  for  the  prosecution,  fainted  iiliortly 
after  ilio  couimunccment  of  U\h  croxH-exniiiiimtion,  io  a«  to  render  it  iniponHiblo 
for  liim  to  give  nny  fiiitlior  evidence:  Held,  i)y  Bevcn  jiidgcH  ogninNt  fivi-,  tliiit  a 
convietion  upon  hucIi  evidonee  iih  had  been  iiirciidy  given  by  Hun  wiliiuMH,  tuiion 
together  witii  tliu  evidence  ofotiior  witncsMes,  wuh  good. 

Laurence  Doolix,  Patrick  Snmers,  Michael  Somers, 
John  Somers,  and  Martin  Whelan,  were  indicted  at  the 
Spring  Assizes  for  Kilkenny,  in  1832,  before  Foster,  B., 
for  a  burglary;  and  the  prisoners  having  refused  to  join 
in  their  challenges,  Laurence  Doolin  was  first  put  upon 
his  trial. 


John  Manning,  the  proprietor  of  the  house  where  the 
burglary  was  charged  to  have  been  committed,  was  pro- 
duced as  a  witness  for  the  prosecution,  whilst  in  a  state 
of  extreme  sickness  and  debility ;  he  however  gave  his 
evidence  on  the  direct  examination  in  a  clear  and  satis- 
factory manner:  but  shortly  after  the  commencement 
of  his  cross-examination  he  fainted,  and  was,  in  fact, 
supposed  by  many  to  be  dead.  The  learned  Baron 
directed  him  to  be  examined  by  two  medical  gentlemen 
who  were  present;  and  they  being  sworn  concurred  in 
saying,  that  his  pulse  had  ceased,  and  that  they  consi- 
[*124]  dered  him  *to  be  dying.  They  also  declared 
his  further  examination  to  be  physically  impossible,  and 
that  there  was  no  reason  to  expect  that  he  would  recover 


41  I 


the 
iro- 
jtate 
his 
atis- 
nent 
fact, 
aron 
jmen 
d  in 
onsi- 
llared 
and 
Icover 


1H39.]  REX  e.   DOOLIN.  184 

\\m  consciousness,  if  tho  Court  were  to  wait.  He  was 
then  carried  out  of  Court.  The  prisoner's  counsel  upon 
this  insi.sted  that  tho  prisoner  was  entitled  to  an  acquittal. 
The  learned  Baron  su^iresicd  that  there  was  another 
conrse  that  might  be  for  consideration,  namely,  the  ex- 
punj^ing  his  evidence  on  tho  direct  examination,  and 
allowing  the  trial  to  proceed  on  such  other  evidence  as 
might  be  adduced;  and  his  Lordship  stated,  that  he 
would  wish  to  hear  the  propriety  of  such  a  course 
argued  by  counsel  on  both  sides.  The  counsel  for  the 
prisoner,  however,  did  not  accede  to  this  suggestion, 
insisting  that  he  was  entitled  to  an  ac([uittal,  ina.smuch 
as  the  act  of  God  had  deprived  the  prisoner  of  that 
which  was  his  right,  namely,  the  benefit  of  the  cross- 
examination  of  this  witness,  which  it  was  said  might 
have  established,  some  contradiction  to  the  evidence  of 
the  other  witnesses.  The  learned  Baron  therefore  took 
the  course  of  allowing  the  trial  to  proceed,  and  directing 
the  jury  to  take  into  their  consideration  all  such  evi- 
dence as  they  had  heard  from  this  witness;  with  an 
intention  to  save  the  point  for  the  consideration  of  the 
twelve  Judges,  in  the  event  of  a  conviction. 

The  wife  and  daughter  of  the  first  named  witness 
were  then  produced,  and  their  evidence  was  such  as 
would  have  warranted  a  conviction  independently  of  the 
evidence  of  John  Maniiing.  The  prisoner  went  into 
his  defence,  and  examined  witnesses  in  support  of  it. 
He  was  found  guilty ;  and  the  learned  Baron  sentenced 


•*'■•■ 


J 


!      11 

■■  i 

I  ; 

% 


I 


'W 


1S4  JEBB'S    RESERVED  CASES.  [April  18,  &c 

him  to  be  hanged  on  the  25th  of  April;  naming  that  dis- 
tant day,  in  order  that  the  opinion  of  the  Judges  might 
[*125]  first  be  *  taken.  Tlie  question  for  the  Judges 
therefore  was,  whether  the  sentence  should  be  carried 
into  execution. 


'i 


Two  questions  were  discussed  by  the  Judges:  1st, 
Whether  the  testimony  of  a  witness  whose  cross-exami- 
nation was  prevented  by  illness,  should  have  been  s^ib- 
mitted  to  the  jury?  2dly,  If  it  should  not,  then  whether 
it  was  competent  for  the  judge  to  say,  that  if  the  other 
evidence  was,  in  his  opinion,  sufficient  to  warrant  a 
conviction,  that  conviction  should  stand  and  be  acted 
on?  Often  Judges  present,  seven  (Bushe,  C.  J.,  Moore, 
J.,  Johnson,  J.,  Jebb,  J.,  Burton,  J.,  Vandeleur,  J., 
and  Foster,  B.),  were  of  opinion,  that  the  conviction 
was  right;  and  of  these,  five  were  of  opinion  in  the 
affirmative  on  both  questions.  They  tlmuglit  that  the 
evidence  having  been  legal  evidence  when  given,  was 
legal  evidence  throughout,  and  could  not  be  rejected 
or  withdrawn  from  the  consideration  of  the  jury,  because 
an  accident  had  prevented  a  cross-examination;  and  that 
the  only  effect  of  this  should  be,  that  the  Judge  should 
call  the  attention  of  the  jury  to  this  circumstance,  and 
make  such  observations  as  he  might  think  fit,  respecting 
the  caution  to  be  observed  in  consequence  of  the  fatality. 
On  the  second  point  they  were  of  opinion,  on  the  autho- 
rity of  decided  cases,  as  well  as  on  principle,  that  even 
if  the  evidence  were  to  be  expunged,  and  the  remaining 


1832.] 


REX   V.  DOOLIN. 


tning 


evidence  were,  in  the  opinion  of  the  Judge,  clearly  suffi- 
cient to  sustain  the  verdict,  the  conviction  ouglit  to  stand. 
DoiiERTY,  C.  J.  C.  Pleas,  Smith,  B.,  and  Pennefatiier, 
B.,  doubted  on  both  points,  and  inclined  to  think,  that 
the  conviction  ought  not  to  stand;  but  Peninefather, 
B.,  after  the  Judges  had  given  their  opinion,  inclined 
to  think  the  conviction  was  right  on  the  first  point. 

*  The  analogy  between  this  case,  and  the  case  [*126] 
of  dying  declarations,  which  are  admitted,  upon  trials 
for  murder,  appeared  to  many  of  the  Judges  to  be  quite 
complete.  The  dying  declaration  is  held  to  be  equiva- 
lent to  testimony  upon  oath,  and  it  is  received,  altho'igh 
there  has  been  no  opportunity  to  cross-examine.  But 
others  of  the  Judges,  including  some  of  the  majority 
above  mentioned,  did  not  think  the  case  of  dying  decla- 
rations applicable.  They  thought  that  it  was  an  insu- 
lated case,  where,  from  necessity,  the  general  rule  of 
examining  the  witness  in  the  presence  of  the  prisoner, 
with  an  opportunity  to  cross-examine  him,  was  broken 
through.  But  it  appeared  to  the  former  Judges,  that 
on  this  particular  point,  viz.  of  the  opportunity  of  cross- 
examination  having  been  lost,  the  case  was  strictly 
applicable.  The  reception  of  the  declaration  of  a  dying 
man,  made  rot  upon  a  trial,  appeared  to  them  to  be  the 
anomaly.  Such  a  declaration  is  admitted  in  the  case 
of  homicide,  and  in  that  case  only ;  and  apparently  on 
this  ground,  that  the  dying  man,  the  cause  of  whose 
death  is  the  matter  in  question,  is  generally  the  person 


1.1*'^ 


39. 


f 

1 ) 


m 


i-t 


,.  ^ ' 


\  III 


III 


:;:3'       '     t 

J  I 


'  HI 


126 


JEBB'S    RESERVED  CASES. 


[April  18,  &c 


who  can  best  tell  (and  often  the  only  person  who  can 
tell),  who  it  was  that  committed  the  act;  and  the  urgency 
of  the  case  may  often  be  such  as  to  make  it  impossible 
to  proceed  in  the  usual  course  by  examining  the  witness 
in  the  presence  of  the  accused,  either  upon  a  trial,  or 
before  a  magistrate;  and  therefore,  lest  so  enormous  a 
crime  as  murder  should  go  unpunished,  the  declaration, 
though  made  in  the  absence  of  the  prisoner,  is  received, 
it  being  made  under  a  sanction  equivalent  to  an  oath. 


'1 


[*127]  On  a  subsequent  day,  the  Lord  Chancel- 
lor (a),  being  one  of  the  Lords  Justices,  came  into  the 
King's  Bench  Chamber,  and  stated  to  the  Judges  there 
assembled  that  he  had  great  difficulty  in  advising  or 
deciding  whether  an  execution  should  take  place  in 
this  case;  and  he  discussed  with  the  Judjjes  the  opinion 
to  which  the  majority  of  them  had  come,  upon  which 
he  expressed  strong  doubts.  It  was  finally  determined, 
that  the  case  should  be  argued  by  counsel,  an  alteration 
in  the  Irish  practice  in  conformity  to  the  English,  which 
the  Judges  had  already  agreed  should  take  place,  when- 
ever the  case  should  appear  of  such  difficulty  or  impor- 
tance as  to  call  for  it  (A). 

The  case  was  accordingly  argued  by  Arthur  Hamiltoti, 


(a)  Lord  Plunket. 


(h)  For  tlie  resolution  on  this  subject,  ride  ante,  p.  1. 


1833.] 


REX   V.   DOOLIN. 


137 


for  the  prisoner,  and  R.  W.  Greene,  for  the  Crown,  be- 


fore the  twelve  Judges. 


or 


lilton, 


:,p.l. 


On  this  day  (May  2)  the  Twelve  Judges  met  and  deli- 
vered their  opinions  5ma//mr  Seven  Judges  (Busiie, 
C.  J.,  Joy,  C.  B.,  Moore,  J.,  Jebb,  J.,  Burton,  J.,  Vande- 
LEUR,  J.,  and  Foster,  B.),  were  of  opinion,  that  the 
conviction  was  proper,  and  that  the  learned  Judge  had 
pursued  the  proper  course  in  leaving  the  case  to  the  jury, 
and  submitting  to  tliem  the  evidence  of  the  witness  who 
had  been  taken  ill,  accompanied  by  such  observations 
as  from  that  circumstance  he  might  think  fit  to  make. 
They  were  of  opinion,  that  the  general  rule  that  a  wit- 
ness shall  be  subjected  to  cross-examination,  was  subject 
to  exceptions,  two  of  which  were  familiar,  namely,  dying 
declarations  and  depositions  before  the  Coroner,  of  wit- 
nesses who  had  died  before  the  trial ;  that  this  case  stood 
upon  the  same  *  principle,  fatality,  or  the  act  of  [*12&] 
God,  and  that  it  was  a  case  not  more  unfavourable  to 
the  prisoner,  than  the  two  cases  of  dying  declaration  is 
and  depositions;  perhaps  less  so,  as  the  witness  is  ex- 
amined betbre  a  Judge,  who  will  take  care  that  no 
improper  questions  are  put,  and  that  the  witness  shall 
answer  fully  and  without  evasion.  They  held,  that 
the  evidence  being  legal  when  given,  and  being  at  the 
utmost  only  incomplete,  by  reason  of  the  interruption 
of  the  cross-examination,  did  not  stand  on  the  same 
ground  with  evidence  which,  in  the  further  progress  of 
a  trial,  became  illegal  by  something  then  appearing,  as 
31 


::S3' 


^W 


I 


\l 


ite^a 


198 


JEBB'S    RESERVED   CASES. 


[April  18,  &.C 


i  . 


for  instance,  the  incompetency  of  the  witness;  for  that 
in  such  case,  if  the  objection  had  appeared  in  sufficient 
time,  the  witness  would  not  have  been  examined.  That 
to  establish  such  a  i  ule  as  the  withholding  of  the  evi- 
dence in  this  case,  would  not  only  be  mischievous  to 
the  public,  but  might  be  prejudicial  to  the  prisoner ;  for 
it  would  follow  from  it  (as  was  admitted  by  those  who 
contended  for  such  a  rule),  that  if  a  witness  for  a  pri- 
soner after  concluding  his  direct  examination,  were  to 
die  before  cross-examination,  and  hh  direct  evidence  to 
be  expunged  in  consequence,  the  prisoner  would  be 
deprived  of  evidence  which  might  have  produced  an 
acquittal.  That  the  course  pursued  in  courts  of  equity, 
where  a  witness  died  after  his  direct  examination,  and 
before  cross-examina  ,  was  applicable  to  this  case; 
the  depositions  in  such  case  are  read,  the  Court  taking 
into  its  consideration  the  circumstance  that  there  had 
not  been  a  cross-examination  (a).  They  also  held,  that 
the  Judge  ought  not  have  discharged  the  jury,  which 
was  the  course  that  some  of  the  Judges  thought  should 
[*129]  have  been  followed;  *for  that  this  could  only 
have  been  done  by  the  desire  of  the  prisoner,  and  for 
his  benefit :  and  that  in  the  present  case  he  had  not 
desired  it,  and  it  was  not  necessary  for  his  benefit.  On 
the  contrary,  the  witness  had  spoken  hesitatingly  of  the 
identity  of  the  prisoner,  upon  which  circumstance  the 
Judge  had  made  observations  in  his  summing  up  favour- 


(a)  Sec  2  tich.  .V  J-.  U>'i;  I  rof'-r,.  :  'l;  1  P.  W.  414. 


vour- 


1832.]  REX   «.   DOOLIN.  \m 

able  to  the  prisoner;  besides,  unless  the  prisoner  desired 
that  the  jury  should  be  discharged,  he  might  coinjjlain 
of  an  injury,  in  having  a  new  jury,  with  power  to  the 
crown  to  set  aside.  The  case  of  Rex  v.  Squire  {a) 
appeared  to  the  majority  to  be  an  authority  for  not 
expunging  the  evidence,  as  Lawrence,  J.,  had  suffered 
the  testimony  of  a  witness  to  go  to  the  jury,  though  he 
did  not  recover  before  the  Judge's  examination  of  him 
had  concluded,  in  the  course  of  which  something  favour- 
able to  the  prisoner  might  possibly  have  appeared. 

Five  Judges  (Doherty,  C.  J.  C.  Pleas,  Smith,  B., 
Johnson  J.,  Pennefather,  13.,  and  Torrens,  J.,)  were 
of  opinion  that  the  conviction  was  wrong. 

Torrens,  J.,  thought  that  the  Jury  ought  to  have 
been  discharged;  Smith,  B.,  thought  the  same,  and  that 
the  evidence  of  the  witness  should  not  have  been  sub- 
mitted to  the  jury.  The  other  three  Judges  were  of 
opinion,  that  the  evidence  ought  not  to  have  been 
submitted  to  the  jury.  They  insisted  on  the  generality 
of  the  rule,  that  all  witnesses  should  be  subjected  to 
cross-examination,  and  that  if  this  cannot  take  place, 
the  evidence  is  not  complete,  and  cannot  be  submitted 
to  the  jury,  if  objected  to;  and  the}'  dwelt  much  on  the 
possible  injury  *  that  might  accrue  to  a  prisoner,  [*1'30] 

(a)  1  Russ.  on  Cr.  426,  note. 


I 


,0    !--    *l 


r 


.rfj' 


..<*'■'  ■ 


!| 


130 


JEBB'S  RESERVED  CASES. 


[May  9 


if  evidence  should  be  used  against  him,  w^hen  there  was 
no  opportunity  of  cross-examining. 


\'f 


• 


All  the  Judges  held,  that  the  Judge  should  not  have 
directed  an  acquittal,  and  none  of  them  rested  their 
opinion  on  the  ground  of  there  being  sufficient  evidence 
to  convict,  independently  of  the  evidence  in  question. 
It  was  however  considered,  that  there  might  be  cases 
which  would  authorise  this,  but  that  they  should  be 
cases  where  there  could  be  no  doubt  upon  the  evidence. 

The  capital  punishment  was  commuted  for  transpor- 
tation. 

Sec  Rex  V.  Ball,  Russ.  &,  Ry.  132. 


IN  the  Matter  of  PRESENTMENTS  for  DISPENSARIES 
in  the  QUEEN'S  CO. 


Held,  that  the  grand  jury  had  a  discretionary  power  under  the  58  Geo.  3,  c.  47,  to 
present  a  less  sum  than  the  amount  of  private  subscriptions,  for  a  dispensary. 


The  folio winfT  case  was  reserved  by  Smith,  B.,  from  the 
Spring  Circuit  in  1832: 


"Several  applications  for  Dispensary  presentments 


1832.] 


DISPENSARY    PRESENTMENTS. 


130 


^,  c.  47,  to 
tcnsary. 


lom 


the 


Itments 


"  under  the  58  Geo.  III.  c.  47,  having  been  made  to  the 
"  Grand  Jury  of  the  Queeii's  County,  they  communi- 
**  cated  to  me  their  desire,  on  the  one  hand,  to  present 
"something,  but  on  the  other  hand  (considering  the 
"  burthens  which  the  County  had  to  bear)  not  to  grant 
"a  sum  equal  to  the  amount  of  the  subscriptions,  but  in 
"each  case  to  present  two  thirds  of  such  amount;  and 
"they  enquired  of  me,  if  this  could  be  done.  After 
"conferring  with  my  Lord  Chief  *  Justice,  I  [*131] 
"  stated  to  them  that  a  majority  of  the  Twelve  Judges 
"  had  determined  that  Grand  Juries  had  a  right  to  de- 
"cline  pres?nting  any  thing  if  they  thought  fit,  but 
"  that  the  question,  whether,  if  they  presented  any  sum, 
"  they  were  bound  to  present  one  equal  in  amount  to 
"  that  of  the  subscriptions,  I  did  not  consider  to  be  so 
"  distinctly  and  definitively  settled,  as  that  it  might  not 
"  be  expedient  to  submit  this  point  again  to  the  Judges 
"  for  their  opinion. 

"Accordingly,  they  have  endorsed  the  two  sums  on 
"each  presentment,  viz.  a  sum  equal  to  that  of  the 
"  subscriptions,  and  a  sum  falling  short  by  one-third  in 
"each  case  of  its  amount;  it  being  understood  that  I 
"  shall  fiat  for  the  smaller  sum,  if  your  lordships  think 
"  that  this  may  be  done — otherwise  for  the  larger." 

The  Twelve  Judges  being  present,  it  was  resolves!  by 
SEVEN  of  them,  (Moore,  J.,  Jebb,  J.,  Burton,  J.,  J'en- 

NEFATHER,  B.,  VaNDELEUR,  J.,  ToRRENS,  J.,  and  F08TER, 


tt00     ' 


a 

3 

.,JI»- 


1 1 


■f,X' 


\\ 


i      M' 


131 


JEBB'S   RESERVED  CASES. 


[May  9 


B.,)  that  the  question  whether  it  was  discretionary  in 
the  Grand  Jury  to  present  any  sum  they  might  think 
proper,  not  exceeding  the  amount  of  the  voluntary  sub- 
scriptions, should  not  be  reconsidered;  it  being  their 
opinion  that  the  question  was  settled  by  the  Judges  in 
[*132]  1827  (a),  and  most  of  the  Judges  *  having  since 
acted  upon  that  supposition.  The  other  five  Judges 
thought  that  the  question  should  be  reconsidered. 


ff 


1 


(a)  There  had  been  for  soma  t'mc  conflicting'  opiniona  upon  this  point,  which 
was  ut  length  settled  by  tlie  decisiin  in  1827,  referred  to  in  the  text.  That  wns  a 
decision  of  u  majority  of  the  Judges  (upon  a  case  reserved  by  Vandeleur,  J.,  from 
tiie  Summer  Assizes  at  Mayo,  in  18'.2G)  to  tlie  effect  that  the  Orund  Jury  had  a 
discretionary  power  as  to  tiie  sum  they  sliould  present  for  a  dispensary,  nnd  tliut 
the  statute  58  Geo.  III.  c.  47,  s.  5,  was  not  imperative  on  them  to  present  a  sum 
equal  to  the  amount  of  the  sui)seriptions,  but  allowed  them  cither  to  decline  mak- 
ing any  presentment  at  all,  or  to  make  one  for  a  less  sum  than  the  amount  of  the 
Bubscriptions,  supposing  all  the  requisites  prescribed  by  the  Act  I  ^  have  been 
complied  with.  This  dccisinn  (which  was  the  result  of  a  long  discussion,  at  two 
Bcvcriil  meetings),  overruled  a  former  ease  decided  by  eleven  Judges  ( Vandeleur,  J., 
disaenticute)  in  Miehaehiiiis  T.  1823,  upon  a  question  reserved  by  Moore,  J.,  with 
respect  to  the  Dispensary  of  Custlewellan,  Co.  Down ;  upon  which  occasion  the 
statute  was  held  to  be  imperative. 

See  the  case  of  Medical  Charities,  Co.  Kerry,  (post),  where  the  same  question 
wns  raised  upon  s.  81  of  (i  and  7  Win.  IV.  c.  llfi,  which  now  regulates  Dispensary 
presentments.  That  enactment  providi'g,  that  it  shall  be  lawful  for  the  Grund  Jury 
"  and  tliey  are  hereby  required"  to  present  an  equal  sum,  &,c.  The  words  "  they 
are  hereby  required"  arc  not  in  58  Geo.  III.  c.  47. 


181::.] 


REX  ti.   MAGUIRE. 


133 


THE  KING  V.  THOMAS  MAGUIRE. 


The  27  G.  III.  c.  la,  p.  10,  so  fnr  ns  it  wlutrs  to  tlic  Inking  of  arms,  without  tho 
consent  of  tlie  owner,  is  repciilcd  by  the  1  <fc  2  Win.  IV.  c,  44,  s.  2,  and  tiicrcfurc 
an  indictment  for  such  un  otfencc,  aa  for  a  felony,  cannot  be  sujiported. 


At  the  Spring  Assizes  of  Longford,  in  1832,  Thomas 
Maguire  was  tried  before  Johnson,  J.,  on  an  indictment, 
tiie  first  count  of  which  charged,  "  that  he  with  others 
"unknown,  on  the  9th  day  of  January,  2  Wm.  IV.,  at, 
"  &c.,  being  then  and  there  unlawfully  assembled,  and 
*'  not  being  then  and  there  thereunto  lawfully  autho- 
"  rised,  feloniously  and  forcibly  seized  certain  arms,  to 
"  wit,  one  gun,  then  and  there  being  found,  and  then 
"  and  there  belonging  to  one  Richard  Campbell,  against 
**  the  peace  and  statute."  1  he  second  count  charged 
that  the  prisoner,  &c.,  "did  i'eioiiiously  by  menaces, 
"  threats,  and  violence,  cause  one  Richard  Campbell  to 
"  deliver  to  them  certain  arms,  to  wit,  one  gun,  against 
"  the  peace  and  statute."  The  third  count  stated  that 
they  "did  feloniously  by  insinuation  cause  one  Richard 
^^  Campbell  unwillingly  to  deliver,"  &c.  The  fourth 
count  *  stated  th^it  they  "  feloniously  and  by  [*133] 
"violence  did  cause  one  Hi i hard  Caw/^ie// unwillingly 
"  to  deliver,"  &c. 

This  indictment  was  framed  undrr  the  '21  G   III.  c. 


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JEBB'S  RESERVED  CASES. 


[May  3 


15,  s.  10,  the  words  of  which  Act  are,  as  far  as  relates  to 
this  case,  "  that  every  person  not  lawfully  authorized, 
♦«  who  shall  forcihly  seize  any  arms,  or  shall  hy  insinua- 
"  tion,  menaces,  threats,  or  violence,  cause  any  person 
"  unwillingly  to  deliver  any  arms,  shall  be  adjudged  a 
"  felon,  and  suffer  death  as  in  cases  of  felony,  without 
*'  benefit  of  clergy."  During  the  progress  of  the  trial 
doubts  occurred  to  the  lerrned  Judg3  whether  the  pro- 
visions of  this  Act,  as  to  the  offence  stated  in  the  indict- 
ment, were  not  virtually  repealed  by  the  Act,  then 
recently  passed,  of  the  1  &  2  Wm.  IV.  c.  44.  The 
trial  however  proceeded,  and  the  prisoner  was  convict- 
ed ;  but  the  learned  Judge  respited  sentence,  in  order 
to  take  the  opinion  of  the  Judges  on  the  question  above 
stated. 


1' 


III 


The  learned  Judge  in  reserving  this  question  sub- 
mitted the  following  observations :  By  an  Act  previous 
to  the  27  G.  III.  c.  15,  viz.,  the  15  &  16  G.  III.  c.  21, 
s.  7,  it  was  provided,  as  far  as  relates  to  the  present 
question,  "  that  if  any  person  shall  at  any  time  after 
"  sunset  and  before  sunrise  or  before  the  hour  of  six  in 
"  the  forenoon,  though  the  sun  be  risen,  forcibly  take 
"or  carry  away  any  gun,  sword,  or  other  offensive 
*'  weapon  without  the  consent  of  the  owner,  or  shall 
"  cause  the  same  to  be  delivered  by  threats  or  menaces, 
"  all  and  every  person  so  offending,  being  thereof  law- 
"  fully  convicted,  shall  be  adjudged  guilty  of  felony, 
"  and  shall  suffer  death  as  in  case  of  felony  without  the 


isnQ.] 


REX   V.    MAOUIKE. 


183 


'•benefit  of  clergy."  The  essentiiil  (lifforcnce  between 
the  provisions  of  the  15  &.  10  G.  III.  and  the  '27  G.  III. 
*  c.  IT),  as  far  as  regarded  the  od'ence  in  ((iiestion,  [*134] 
was,  that  the  former  cc  i  the  felonious  taking  to  the 

act  being  done  between  .sunset  and  sunrise,  and  the 
latter  had  no  such  limitation,  but  made  the  taking  of 
arms  in  manner  therein  described,  a  felony.  ;it  whatever 
time  such  taking  was  perpetrated.  The  late  Act  of  the 
I  &  2  W.  IV.  c.  44,  recites  the  passing  of  the  Act  of 
the  15  and  16  Geo.  III.  and  states  that  certain  ollences 
therein  mentioned  are  punished  with  death,  and  that  it 
is  expedient  (o  mitigate  the  severity  of  said  Act,  and  to 
make  certain  amendments  therein;  it  then  enacts,  that 
so  much  of  said  Act  as  enacts  "  tliat  if  any  person  should 
"  at  any  time  between  sunset  and  sunrise  or  before  the 
"hour  of  SIX  in  the  morning,  though  the  sun  should  be 
"risen,  forcibly  take  or  carry  away  any  gun,  sword,  or 
"other  offensive  weapon,  without  the  consent  of  the 
"  owner,  or  should  cause  the  same  to  be  delivered  by 
"threats  or  menaces,  all  and  every  person  so  offending, 
"  being  thereof  lawfully  convicted,  should  be  adjudged 
"guilty  of  felony  and  suffer  death,"  &c.,  should  bo 
thereby  repealed.  It  then  provides  and  enacts  "  that  if 
"  any  person  or  persons  rising  and  assembling,  &c.,  in 
"  manner  mentioned  in  said  Act  of  the  15  &  10  G.  III. 
"shall  take  or  carry  away  any  gun,  sword,  or  other 
"  weapon  whatsoever,  without  the  consent  of  the  owner, 
"  or  shall  cause  the  same  to  be  delivered  to  him  or  them 
"  by  threats  or  menaces,  all  and  every  person  so  offend- 
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JEBB'S  RESERVED  CASES. 


[May  2 


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"  ing,  and  being  thereof  lawfully  convicted,  shall  be 
"liable  to  be  transported  for  the  term  of  his  natural  life, 
"  or  be  imprisoned  with  or  without  hard  labour  for  any 
"term  not  exceeding  three  years;  and,  if  a  male,  to  be 
"  once,  twice,  or  thrice  publicly  or  privately  whipped, 
"  if  the  court  shall  think  fit,  in  addition  to  such  im- 
"  prisonment."  This  Act,  like  the  27  G.  III.  extends 
its  provisions  to  the  taking  of  arms,  whether  the 
[*135]  *  same  be  done  by  day  or  by  night.  The  ques- 
tion therefore  was,  whether  the  Act  of  the  27  G.  III.  as 
far  as  relates  to  the  taking  of  arms,  was  not  virtually 
repealed  by  the  Act  of  the  I  &  2  Wm.  IV.  c.  44 ;  that 
oflfence,  which  by  the  27  Geo.  III.  was  made  a  felony, 
being  made  z  misdemeanor  by  the  1  &  2  Wm.  IV.  c.  44. 

Eleven  Judges  {Smith,  B.,  being  absent),  unani- 
mously held  that  as  far  as  the  taking  of  arms  was  con- 
cerned, the  27  G.  III.  c.  15,  s.  10,  was  repealed  by  the 
1  &,  2  W.  IV.  c.  44,  s.  2;  and  that  therefore  the  convic- 
tion was  bad.  (a) 


(a)  The  conviction  could  not  be  upheld  under  the  1  &  2  Wm.  IV.  because  the 
offence  was  laid  feloniously. 


<<  I 


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1833.] 


REX  t>.  ADAMS. 


ISA 


THE  KING  V.  FRANCIS  ADAMS  and  THOMAS 
LANGTON. 


-4  * 
I-'  1 


the 


An  indictment  under  the  27  G.  III.  c.  15,  s.  G,  for  administering'  an  unlawful  oath, 
is  supported  by  evidence  that  tlie  prisoner  compelled  the  prosecutor  to  swear 
"  that  lie  would  give  up  his  land  to  A.  B."  Tiic  prisoner  peremptorily  chal- 
leiigcd  one  of  the  Jury  on  his  coming  to  the  book;  the  court  refused  to  receive 
the  challenge,  and  the  juryman  was  sworn.  When  judgment  was  about  to  be 
pronounced,  the  prisoner's  counsel  tendered  a  plea,  praying  a  reversal  of  the 

''  judgment,  because  of  the  challenge  not  having  been  allowed,  which  pica  the 
court  refused  to  receive.    Held,  that  the  court  was  right  in  refusing  to  receive  it. 


The  prisoners  were  tried  before  Bushe,  C.  J.,  and  Smith, 
B.,  at  the  special  commission  for  the  Qitceri's  Couniy, 
in  1832,  upon  an  indictment  for  administering  an  unlaw- 
ful oath,  founded  on  the  27  G.  III.  c.  15,  s.  6,  and  which 
was  as  follows:  "The  Jurors,  &c.  upon  their  oath  do 
"  say  and  present,  that  Francis  Adams,  late  of,  &c.,  and 
"  Thomas  *  Langton,^  late  of,  &c.,  on,  &lc.,  at,  [*136] 
"  &c.,  with  force  and  arms,  unlawfully  and  feloniously 
"  did  tender  to  one  John  Large  a  certain  unlawful  oath 
"  upon  a  book,  to  the  import  that  he  the  said  John  Large 
"  would  give  up  certain  land  to  the  widow  Fennell,  they 
"  the  said  Francis  Adams  and  Thomas  Langton  not  being 
"  qualified  by  law  to  administer  an  oath  or  oaths;  against 
"  the  peace  and  statute."  Second  count :  "  That  the  said 
"  Francis  Adams  and  Thomas  Langton,  on  &c.,  with 
"  force  and  arms,  at,  &c.,  unlawfully  and  feloniously 
"  did  cause  to  be  tendered  to  one  John  Large  a  certain 


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JEBB'8  RESERVED  CASES. 


[June  13 


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i 


"  solemn  engagement  upon  a  book,  importing  that  he, 
"  the  said  John  Large,  had  not  any  arms,  they  the  said 
"  Francis  Adams  and  Thomas  Langton  not  being  qiiali- 
''  fied  by  law  to  administer  an  oath  or  oaths;  against  the 
"peace  and  statute."  Third  count:  "That  the  said 
'*  Francis  Adams  and  Thomas  Langton,  on,  &c.,  with 
"force  and  arms,  at  &c.,  unlawfully  and  feloniously 
"  did  by  threats  and  force  cause  and  induce  to  be  taken 
"  by  one  John  Large  a  certain  unlawful  oath  upon  a 
"  book,  importing  that  he  the  said  John  Large  would 
"  give  up  certain  land,  they  the  said  Francis  Adams 
"  and  Thomas  Langton  not  being  qualified  by  law  to 
"administer  an  oath  or  oaths;  against  the  peace  and 
"statute."  Fourth  count:  "That  the  said  Francis 
"Adams  and  Thomas  Langton,  on  &c.,  with  force 
"  and  arms,  at  &c.,  unlawfully  and  feloniously  did  by 
"  force  and  undue  means  cause  and  induce  to  be  taken 
"by  one  John  Large  a  solemn  engagement  upon  a 
"  book,  importing  that  he  the  said  Johii  Large  would 
"  give  up  certain  land,  they  the  said  Francis  Adams  and 
"  Thomas  Langton  not  being  qualified  by  law  to  admi- 
"  nister  an  oath  or  oaths;  against  the  peace  and  statute." 
Fifth  count:  "That  the  said  Francis  Adams  and  Tho- 
"  mas  Langton,  on,  &c.,  with  force  and  arm.s,  at  &c., 
"  [*137]  unlawfully  and  feloniously  did  by  force  *and 
"  undue  means  cause  and  induce  to  be  taken  by  one 
"  John  Large  a  solemn  engagement  upon  a  book,  import- 
"  ing  that  the  said  John  Large  had  not  any  arms;  they 
"  the  said  Francis  Adams  and  Thomas  Langton  not 


1832.] 


REX  V.  ADAMS. 


137 


**  being  qualified  by  law  to  administer  an  oath  or  oaths; 
"  against  the  peace  and  statute."  The  evidence  in  sup- 
port of  the  charge  was,  that  the  prisoners  and  other 
arrned  men  broke  into  the  prosecutor's  house,  made 
him  go  down  on  his  knees,  and  threw  a  book  to  him, 
upon  which  they  compelled  him  by  threats  of  destruc- 
tion to  swear  "  that  he  would  give  up  his  land  to  the 
"  widow  FetmelV  Counsel  for  the  prisoners  insisted 
that  the  oath  was  not  unlawful  in  the  sense  of  the  stat- 
ute, in  which,  with  reference  to  a  provision  in  th^  15 
and  16  G.  III.  c.  21,  s.  21,  an  unlawful  oath  does  not 
merely  mean  an  oath  unlawfully  administered,  but  an 
oath  to  do  an  unlawful  thing.  The  court  overruled  the 
objection,  and  the  prisoners  were  convicted. 

The  prisoner  Adams  had,  when  the  jury  were  about 
to  be  sworn,  peremptorily  challenged  a  juror,  William 
Fishbourne,  on  his  coming  to  the  book;  and  the  Attorney 
General  objecting  to  the  challenge  being  received  (a), 
the  Court  refused  to  receive  it,  and  the  juror  was  sworn. 
When  judgment  was  about  to  be  pronounced  (b),  the 
prisoner's  counsel  tendered  the  following  plea:  "And 
"the  said  Francis  Adams  in  his  own  proper  person, 
"  having  heard  the  judgment  of  the  court,  saith,  that 
"  the  same  ought  to  be  reversed,  because  he  saith  that 
"  he  the  said  Francis  Adams  did  peremptorily  challenge 


(a)  Because  the  offence  charged  was  iint  a  capital  felony.    See  Rex  v.  Phelan, 
and  Rex  v.  Whelan,  Hayes'  Cr.  &  P.  586  (Edn.  18.17). 

(6)  The  plea,  it  will  be  observed,  prays  a  reversal  of  the  judgment. 


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137 


JEBB'S    RESERVED   CASES. 


[June  13 


"  the  said  William  Fishhourne,  one  of  the  Jurors  impan- 
"  [*138]  nelled  and  returned  to  recognize  *  upon  their 
"  oaths  whether  he  the  said  Francis  Adams  was  guilty 
"  of  the  felonies  aforesaid  or  not  guilty,  as  he  the  said 
"  William  Fishhourne  came  to  the  book  and  before  he 
"was  sworn.  And  the  said  Francis  Adams  further 
"  saith,  that  the  Right  Honorable  Francis  Blackhurne, 
"  Attorney  General  of  our  said  lord  the  King,  who  was 
"  present  prosecuting  for  our  said  lord  the  King,  did  not, 
"  nor  did  any  other  person  on  behalf  of  our  said  sove- 
"  reign  lord  the  King,  demur  to  said  challenge  nor  plead 
"thereto  nor  join  issue  thereon,  but  on  the  contrary 
"declined  so  to  do;  nor  did  said  Francis  Adams  with- 
"  draw  his  said  challenge,  but  insisted  on  the  same;  yet 
"  •«vas  said  William  Fishhourne  sworn  to  speak  the  truth 
"  of  and  concerning  the  premises,  and  was  one  of  the 
"  twelve  who  upon  their  oaths  did  say,  that  he  the  said 
"  Francis  Adams  was  guilty  of  the  felonies  aforesaid, 
"  and  this  he  the  said  Francis  Adams  is  ready  to  verify; 
"wherefore  he  prays  that  the  said  judgment  be  reversed." 
Blackhurne,  Attorney  General,  objected  to  the  plea  being 
received ;  and  after  some  controversy  it  was  agreed  that 
if  the  Twelve  Judges,  to  whom  the  Court  stated  their 
intention  to  submit  the  question,  should  think  that  the 
plea  ought  to  be  received,  the  Attorney  General  should 
demur  to  it,  nunc  pro  tunc,  so  that  the  judgment  of  the 
court  upon  the  demurrer  might  be  put  on  the  record. 

The  opinion  of  the  Judges  was  therefore  requested, 


1832.] 


BRIDGE  CONTRACTORS,    MEATII. 


138 


1st,  whether  the  indictment  was  supported  by  the  evi- 
dence? and  2dly,  whether  the  plea  ojiight  to  have  been 
received? 

Ten  Judges  {G'Gradij,  C.  B.,  and  Ton-ens,  J.,  being 
absent)  were  unanimously  of  opinion  that  it  was  right 
to  *  refuse  the  plea  tendered;  and  that  the  in-  [*139] 
dictment  was  supported  by  the  evidence  [a). 


(a)  Sec  a  report  of  tlie  trial  in  tiiis  case  in  Mongan'a  Maryborough  Special  Cum- 
mission  Trials,  241. 


IN  the  Matter  of  PRESENTMENTS  for  BRIDGE  CON- 
TRACTORS  and  OVERSEERS  in  the  Cos.  of  MEATH 
and  KILDARE. 


tted, 


A  presentment  made  by  a  grand  jury  at  the  assizes,  upon  the  memorial  of  a  con- 
traetor  for  building  a  bridge,  to  cover  the  additional  expenses  iiieurred  by  the 
contractor,  'n  consequence  of  a  change  in  the  site,  is  illegal.  A  presentment  of 
the  amount  of  an  attorney's  bill  of  costs,  furnished  to  the  county  overseers,  for 
preparing  a  contract,  &,c.,  for  building  a  bridge,  is  illegal. 

At  the  Spring  Assizes  at  Trim,  in  1832,  on  the  memo- 
rial and  affidavit  of  James  Bell  and  James  Pettigrew,  the 
grand  jury  of  the  County  of  Meath  presented  a  sum  of 
£  145,  to  cover  an  increased  expense  incurred  by  the 
memorialists,  by  reason  of  a  change  in  the  site  of  the 
bridge  of  Clonard. 


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139 


JEBB'S  RESERVED   CASES, 


[Juno  13 


The  memorial  stated,  that  the  memorialists  had  con- 
tracted to  build  a  bridge  on  the  river  Bot/ne,  at  Clonard, 
on  a  site  approved  of  by  the  two  county  overseers ;  but 
that  after  they  had  commenced  operations  by  quarrying 
and  damming,  they  were  requested  to  attend  a  meeting 
of  the  trustees  of  the  MuIIingar  ivirn])\ke  road,  at  which 
they  were  directed  to  point  out  the  line  of  road  approved 
of  by  the  Counties  of  Meath  and  Kildare,  to  lead  over 
the  bridge  in  question.  They  pointed  it  out,  and  the 
trustees  disapproved  of  it;  and  after  some  discussion, 
and  objections  urged  by  the  memorialists  to  any  change 
of  site,  as  involving  additional  expense,  the  memorialists 
were  prevailed  upon  to  adopt  the  site  proposed  by  the 
[*140]  trustees.  *  The  overseers  were  aware  of  the 
change,  which  was  acknowledged  to  be  a  great  improve- 
ment. The  affidavit  stated  the  amount  of  the  additional 
expense. 

The  grand  jury,  in  calling  the  attention  of  Smith,  B., 
(the  Judge  of  Assize)  to  this  presentment,  declared  their 
opinion,  that  the  claim  was  a  fair  and  meritorious  one, 
and  that  their  wish  was  to  present  for  it,  if  such  a  pre- 
sentment was  warranted  by  law.  The  learned  Baron 
accordingly  respited  the  presentment,  until  the  assizes 
of  Naas,  where  it  was  expected  that  a  similar  present- 
ment would  come  forward,  stating  his  intention,  that  he 
would  there,  as  the  case  might  be,  fiat,  or  nil,  or  respite 
both;  and  in  the  last  event  reserve  a  question  for  the 
Judges,  on  the  legality  of  those  presentments. 


&c. 
This 


The  twelve  Judges  unanimously  decided  against  all 
the  presentments,  viz.  those  for  the  additional  sums  in 
the  respective  counties,  and  that  for  the  bill  of  costs  (a). 


IW! 


■  1 


1832.] 


BRIDGE   CONTRACTORS,    MEATH. 


140 


At  the  assizes  of  Naas  the  grand  jury  of  the  County 
of  Kildare,  on  a  similar  memorial  and  affidavit,  in  like 
manner  presented  a  sum  of  £145.  The  Kildare  pre- 
sentment was  indorsed  as  follows: — "We  present  that 
"  the  sum  of  £  145  be  paid  to  James  Pettigrew  and  James 
"  Bell,  to  remunerate  them  for  extra  work  done  by  thtm 
"in  building  the  bridge  of  Clonard,  by  reason  of  an 
"  unavoidable  change  in  the  original  site,  provided  such 
"  presentment  be  legal. 

"D.  O'Reilly,  Foreman." 


The  learned  Baron  respited  both  presentments,  in 
order  to  submit  the  question  of  their  legality  to  the 
twelve  Judges.  The  Meath  grand  jury  also  presented 
a  sura  of  £23  125.  3d.  the  amount  of  a  bill  of  costs 
furnished  to  the  overseers  by  an  attorney,  for  preparing 
the  contract  for  building,  and  the  bond  or  recognizance, 
&c.,  *  between  the  overseers  and  the  contractors.  [*141] 
This  presentment  was  also  respited. 


..■*•:     1 


the 


(a)  The  ground  of  tliis  decision,  as  to  the  bill  of  costs,  probably  was,  that  the 
works  in  question  did  not  in  their  nature  warrant  the  overseers  in  cntcrinjr  into 
contracts,  but  were  to  be  executed  in  the  usual  way  by  the  overseers,  under  the 
46  G.  3,  c.  96,  and  that  tiierefore  all  expenses  incurred  fjr  contracts  were  illegal: 
and  as  to  the  additional  sums,  that  in  compliance  with  the  59  G.  3,  c.  84,  the  appli- 
cations should  have  been  submitted  to  special  sessions. 

The  law  upon  the  subject  of  presentments,  &c.,  for  roads  and  bridges,  is  now 
considerably  altered.    The  offices  of  overseers,  under  the  46  G.  3,  c.  96,  oiid  super- 

.     23 


Pi   ■ 


141 


JEDB'S  RESERVED  CASES. 


[May  1 


r: 


vi»ori,  undur  49  O,  3,  c.  84,  am  8ti|)criic(lcil  and  abolished  by  tho  appointment  of 
county  surveyors  under  the  late  (Jrand  Jury  Acts,  and  by  the  4  «fe  5  VV.  I,  c.  !H, 
8.  3j  and  tho  proceedings  are  now  principiilly  rcRuhited  by  tlic  6  &.  7  W.4,  c,  116, 
»».  13,  30,  57, 133,  &.C.;  4  &  5  W.  4,  c.  61 ;  and  Ihu  7  W.  4,  c.  3,  aa.  10, 11, 16,  &.u. 


IN  the  Matter  of  PRESENTMENTS  by  the  Grand  Jury  of 
the  County  of  ARMAGH. 


Tho  magistrates  at  special  sessions  under  .tho  59  G.  3,  c.  84,  not  having  suflieicnt 
time  til  consider  all  the  presentments  (one  day  only  having  been  op|iointcd  by 
the  grand  jury  for  the  purpose),  selected  a  certain  number  and  left  tho  rest  un- 
considered :  Held,  that  such  selection  did  not  render  the  proceedings  illegal :  Held 
also,  that  under  that  Act  it  is  not  necessary  that  all  the  thrco  magistrates  (not 
being  agents)  whose  presence  was  rendered  necessary  at  the  sessions,  should  bo 
resident  in  the  county. 


A  SMALL  number  of  magistrates  assembled  at  Nervry, 
for  the  purpose  of  holding  a  special  sessions  for  the  ex- 
amination of  presentments  relating  to  the  barony  of 
Uj^er  Orier,  pursuant  to  the  59  Geo.  III.  c.  84.  One 
day  only  was  appointed  by  the  grand  jury  for  this  pur- 
pose ;  and  after  the  magistrates  had  gone  through  the 
accounting  affidavits,  and  the  presentments  relating  to 
the  county  at  large  on  that  barony,  they  found  it  would 
[*142]  not  be  in  their  *  power  to  go  through  the  entire 
of  the  remaining  applications,  and  in  consequence  they 
selected  for  consideration  those  presentments,  which 
they  thought  most  requisite  and  urgent,  or  felt  most  in- 


1833.1 


CO.   ARMAGH   PRESENTMENTS. 


149 


ex- 

of 
lOne 
|p\ir- 
the 
gto 
iould 
Intire 
they 
hich 
it  in- 


terest in,  or  on  which  they  were  best  informed ;  and  left 
the  remainder,  in  which  absent  magistrates  were  inte- 
rested (being  about  one-half  of  the  entire)  unconsidered. 

The  grand  jury  having  some  doubts  as  to  the  legality 
of  such  a  proceeding,  submitted  those  doubts  to  Smith, 
B.,  (the  Judge  of  Assize),  requesting  his  opinion,  whe- 
ther the  applications  thus  selected  could  be  considered 
as  legally  coming  before  the  grand  jury,  or  whether  the 
entire  proceedings  at  the  sessions  should  be  considered 
as  illegal.  It  was  felt  that  those  applications  which  had 
not  been  considered  at  sessions  could  not  be  taken  into 
consideration  by  the  grand  jury;  and  the  question  was, 
whether  the  selection  which  had  taken  place  gave  such 
a  character  of  illegality  to  the  whole  proceeding,  as  to 
exclude  from  the  consideration  of  the  grand  jury  those 
selected  cases  which  the  magistrates  had  considered ;  or 
whether,  though  the  course  taken  by  the  magistrates 
might  have  been  censurable,  the  applications  which 
they  had  considered  could  properly  be  brought  before 
the  grand  jury.  The  grand  jury  stated,  that  they  did 
not  think  any  imputation  of  undue  motives  attached 
upon  the  magistrates,  but  they  thought  the  precedent 
might  be  attended  with  danger;  and,  at  all  events,  that 
the  construction  of  the  statute  ought  to  be  settled. 
Upon  these  points  the  learned  Baron  respited  the  pre- 
sentments relating  immediately  to  the  barony  roads, 
until  the  opinion  of  the  Judges  could  be  had;  but  the 
barony  presentments,  so  *far  as  they  related  [*143] 


,j» 


I  \ 


¥> 


iir' 


'^  ■  ill 


■  !■  ;P 


^1 

ii 


fW 


id 


Ii'  H 


143 


JEDD'S   RESERVED  CASES. 


[May  1 


!  ,' 


to  the  county  at  large,  and  also  the  accounting  afRdavits 
for  the  barony  in  question,  wore  fiated. 

Another  point  was  reserved  in  this  case;  viz.  whether 
or  not  it  was  necessary  that  all  the  three  magistrates, 
whose  presence  was  recjuired  by  s.  9  of  the  59  Geo.  III. 
c.  84,  should  be  resident  in  the  county.  In  the  present 
case  two  out  of  three  who  attended  at  the  Balhjhot  Ses- 
sions were  so  resident.  The  question  turned  chiefly 
upon  8.  4  of  the  above-mentioned  Act,  some  of  the  grand 
jurors  holding  that  the  test  of  residence  prescribed  by 
the  oath  given  in  that  section,  applied  only  to  agents; 
and  others  being  of  opinion  that  it  applied  to  all  the 
qualifications. 

Nine  Judges  out  of  eleven  who  met  (Doherty,  C.  J. 
C.  Pleas,  being  absent),  were  of  opinion,  that  the  pre- 
sentments should  be  fiated.  Bushe,  C.  J.,  and  Torrens, 
J.,  thought  that  they  should  be  mUed{a). 


t'lf 


(a)  The  first  question  in  this  case  may  perhaps  be  applicable  to  the  6  &  7  W.  4, 
c.  116,  which  now  regulates  the  presentment  sessions;  by  s.  17  of  which  tlio  jus- 
tices and  cess-payers  arc  to  consider  all  such  applications  as  may  be  laid  before 
them,  &c. 

As  to  the  second  question,  it  would  seem  that  now  under  s.  9  of  6  &  7  W.  4,  c. 
116,  the  attendance  of  one  justice  would  be  sufficient. 


1833. 


nilRNINO   PETITION,  ANTRIM. 


144» 


r.4, 


*  IN  tho  Mnftcr  of  a  PRESENTMENT  for  Compensation 
for  a  MALICIOUS  BURNING,  in  tho  County  of  AN- 
TRIM. 


To  lupport  a  burning;  petition  under  tho  1!)  ic  20  G,  3,  c.  37,  a  written  notice  upon 
the  liigli.consitabic,  according  to  tho  provJMlunH  of  the  1)  VV.  3,  c,  U,  in  ncccHHury, 
and  such  notice  must  bo  served  within  six  days  afler  tho  injury. 


At  the  Spring  Assizes  for  the  County  of  Antrim  in 
1833,  a  petition  was  preferred  to  Bitsfie,  C.  J.,  for  a 
presentment  for  a  loss  sustained  by  a  malicious  burning. 
Upon  the  examination  of  witnesses,  the  injury  appeared 
to  have  been  committed  in  consequence  of  private  malice, 
and  not  by  insurgents.  The  petition  therefore  not  being 
founded  upon  the  Whiteboy  Act,  the  only  question  was, 
whether  sufficient  notice  was  given  under  the  Acts  of 
7  W.  III.  c.  21,  and  9  W.  III.  c.  9,  then  expired,  but 
referred  to  by  the  19  and  20  G.  III.  c.  37. 

The  party  gave  written  notice  to  the  church-wardens, 
who  were  inhabitants  near  the  place  where  the  injury 
wa?  committed,  within  forty-eight  hours  after  the  injury 
was  committed,  and  also  swore  examinations  within 
four  days  after  such  notice ;  so  that  if  the  acts  required 
to  be  done  by  the  7  W.  III.  were  necessary  requisites, 
they  had  been  performed  in  this  case.  But  the  notice 
given  to  the  high-constable  by  the  petitioner  was  not  in 
writing,  but  parol;  and  if  that  notice  were  necessary  (as 


m 


if 


It 


ill 


■•1, ' 


PHI 


■•■■ 


I J 


144 


JEBB'S  RESERVED  CASES. 


[May  1 


was  insisted  by  those  who  opposed  the  petition),  it  was 
not  sufficient  according  to  the  9  W.  III.  c.  9.  Counsel 
for  the  petitioner,  however,  argued,  that  by  the  19  &  20 
G.  III.  c.  37,  notice  to  the  high-constable  was  impliedly 
dispensed  with. 

[*145]  Eleven  Judges  {Dohertij,  C.  J.  C.  Pleas, 
being  absent)  unanimously  decided,  that  the  present- 
ment should  be  nilled,  on  the  ground  that  notice  to  the 
high-constable  was  necessary,  and  that  such  notice 
should  be  a  written  one,  and  left  with  him  within  six 
days  after  the  injury  done  {a). 


(a)  This  Act  (19  &  20  G.  3,  c.  37),  is  still  in  force  in  Uie  County  of  Dublin.— 
Vide  ante,  72,  note. 


IN  the  Matter  of  PRESENTMENTS  relating  to  the  Barony  of 

STRABANE. 


I' 
11 


il 


Held,  that  the  grand  jury  had  no  power  at  the  assizes  to  make  presentments  upon 
applications  which  had  not  been  laid  before  the  magistrates  at  the  special  ses- 
sions next  before  those  assizes,  under  the  59  G.  3,  c.  84. 


At  the  Spring  Assizes  for  the  County  of  Tyrone  in 
1833,  before  Moore,  J.,  an  objection  was  taken  by  a 
deputation  from  the  town  of  Strabane,  to  all  the  pre- 
sentments in  the  printed  schedule  intended  to  be  made 


:  i':  i 


1833.] 


CO.   TYRONE   PRESENTMENT. 


145 


of 


on  the  barony  of  Strabane,  on  the  ground  of  the  appli- 
cations for  such  presentment''  not  having  been  made 
before  the  Justices  or  Magistrates  assembled  at  the 
special  sessions  held  next  previous  to  the  assizes,  as 
appointed  by  presentment  of  the  grand  jury  at  the 
preceding  Summer  Assizes,  agreeably  to  the  provisions 
of  the  statute  59  Geo.  III.  c.  84,  ss.  1,  2,  and  3;  and 
that  consequently  the  grand  jury  had  no  legal  power  to 
take  such  applications  into  consideration,  or  make  any 
presentment  founded  thereon. 

This  objection  vv^as  met  by  a  statement,  that  all  of  the 
applications  then  sought  to  be  presented  on  that  barony 
had  been  laid  before  the  grand  jury  at  the  last  Summer 
Assizes  (having  been  previously  to  such  Summer  As- 
sizes *  considered  by  the  magistrates  assembled  [*146] 
at  special  sessions),  but  that  the  applications  had  been 
held  over  and  suspended  by  the  grand  jury  w^ith  the 
sanction  of  the  Judge  (as  they  conceived),  and  that 
therefore  the  grand  jury  had  still  the  legal  power  to 
consider  them. 


Ill 


:;;J< 
•■is 


I 


■t  1 


ili 


in 
T  a 
^re- 
^ade 


In  answer  to  this  it  was  urged,  that  the  provisions  of 
the  Act  were  precise  and  specific;  and  that  even  sup- 
posing the  judge  had  given  such  sanction  (which  the 
deputation  very  much  doubted)  it  must  have  been  with 
the  proviso,  that  the  applications  should  be  again  sub- 
mitted to  the  Road  Sessions. 


■  1 1' 


:f; 


!   ■> 


iii' 


'M: 


m 


nr^ 


w 


I 


14-1 


JEBB'S   RESERVED   CASES. 


[May  1 


The  learned  Judge,  therefore,  reserved  for  the  con- 
sideration of  the  Judges  the  question  vi^hether  the  grand 
jury  at  the  Spring  Assizes  had  power  to  consider  those 
applications,  and  make  presentments  thereon;  the  same 
not  having  been  made  befoie  the  Justices  or  Magistrates 
assembled  at  the  special  sessions  held  next  previous  to 
the  Spring  Assizes,  as  appointed  by  presentment  of  the 
grand  jury  at  the  preceding  Summer  Assizes. 

All  the  Judges  (except  Doherty,  C.  J.  C.  Pleasj 
being  present,  veere  unanimously  of  opinion,  that  the 
presentments  should  be  nilled  («). 


■'U 


(a)  See  ss.  5  and  38  of  the  6  &  7  W.  4,  c.  11 6,  the  Act  now  in  force  on  the  sub- 
ject in  the  text.  By  s.  5,  tlic  grand  jury  arc  required  to  fix  a  time  for  proacntrnent 
sessions,  previous  to  the  next  assizes.  Sec.  38  enacts,  that  no  presentment  is  to  bo 
made  unless  an  application  lias  been  approved  at  sessions,  as  therein-beforc  provided. 


[*147]  IN  the  Matter  of  PRESENTMENTS  on  the  Barony 
of  DUNGANNON,  County  of  TYRONE. 


Applications  for  presentments  cannot  be  legally  made  ader  the  precise  day  appoint* 
ed  by  tlic  Grand  Jury  for  holding  the  sessions,  where  there  has  been  no  meeting 
on,  or  adjournment  from,  that  day. 


An  objection  was  made  at  the  Spring  Assizes  for  the 
county  of  Tyrone,  in  1833,  before  Moore,  J.,  to  all  the 


*Unc 
expedieJ 


1833.] 


CO.   TYRONE   PRESENTMENTS. 


147 


presentments  sought  to  be  made  on  the  barony  of  Dim- 
ga)ino)i,  and  also  to  the  proportion  for  the  county  at 
large,  presented  on  that  barony,  on  the  ground  that  the 
road  sessions  appointed  by  the  Grand  Jury  at  the  Sum- 
mer Assizes,  agreeably  to  tho  provisions  of  the  Statute 
59  G.  III.  c.  88,  were  not  iield  on  the  day  appointed  at 
the  place  fixed  for  taking  the  applications  for  such 
presentments  into  consideration.  The  Grand  Jury  had 
fixed  three  days  for  each  sessions. 


;)point- 

Iccting 


In  answer  to  this  objection,  it  was  stated  that  although 
the  road  sessions  were  not  held  at  the  place  appointed, 
on  the  ^ist  day  appointed,  yet  they  were  held  on  the 
next  day  after  the  first  so  appointed,  and  at  the  place 
appointed;  and  that  then  the  applications  had  been 
considered  and  disposed  of. 

But  in  support  of  the  objection,  it  was  insisted  that 
the  road  sessions  must  be  held  and  commence  on  the 
very  day  appointed,  and  if  necessary,  adjourned ;  that 
in  this  case  there  was  no  meeting  whatever  on  the  day 
appointed,  and  of  consequence  no  adjournment  could 
take  place;  and  that  supposing  a  person  to  commit  per- 
jury at  the  sessions  so  held  upon  the  next  day  as  above- 
mentioned,  he  could  not  be  legally  convicted  of  perjury, 
or  liable  to  punishment  for  such  offence. 


.    f : 


'■■•;?»"■■ 


,.'«'"' 


the 
lithe 


*  Under  these  circumstances  it  was  considered  [*148] 
expedient  to  respite  those  presentments  until  the  opinion 
24 


m 


WM 


148 


JEBB'S  RESERVED  CASES. 


[Mayl 


of  the  Judges  should  be  had,  whether  they  could  be 
legally  made  upon  applications  at  sessions  not  holden 
on  the  day  appointed  for  taking  the  same  into  consider- 
ation. 

Eleven  Judges  {Doherty,  C.  J.  C.  Pleas,  being 
absent,)  were  unanimously  of  opinion  that  the  present- 
ments should  be  nilled  (a). 


(a)  Tliis  decision  will  probably  apply  equally  to  the  6  &  7  W.  4,  c.  116,  s.  5. 


'■t  •' 
^  in 


I 


1   i 


THE  KING  t;.  JOHN  M'BENNET  and  JAMES  KER- 

NIGAN. 


The  demand  of  a  gun  from  the  owner's  mother  in  the  house  of  the  owner,  where 
his  mother  lived,  is  suflicient  to  support  an  indictment  for  demanding  property 
with  intent  to  steal ;  although  the  gun  was  not  In  the  house,  or  in  the  mother's 
possession,  at  the  time  of  the  demand. 


The  prisoners  were  tried  before  Bushe,  C.  J.,  at  the 
Spring  Assizes  at  Monaghan,  in  1833,  upon  an  indict- 
ment which  charged  that  they  unlawfully  and  felo- 
niously did,  with  menaces,  and  by  force,  demand  one 
gun,  the  property  of  one  Margaret  Miller,  from,  her,  with 
intent  to  steal  the  same,  against  the  peace  and  statute. 
There  was  a  second  count,  in  all  respects  the  same, 


1833.]  REX  ».  M'BENNET.  148 

except  that  it  stated  the  gun  to  be  the  property  of 


Thomas  Miller, 


The  first  witness  was  Margaret  Miller^  who  swore, 
that  on  the  18th  of  February,  at  night,  three  men  came 
to  the  house  of  her  son  Thomas  Miller,  in  which  she 
lived  as  his  house-keeper,  he  being  an  unmarried  man, 
and  with  threats  demanded  a  gun  from  her,  to  which 
she  answered  there  was  no  gun  there,  and  they  insisted 
that  there  was;  that  they  went  away,  and  in  a  short 
time  returned  and  again  *  demanded  the  gun.  [*149] 
She  further  swore  that  her  son,  who  was  not  at  home 
that  night,  had  a  gun,  but  that  shortly  before  he  had 
taken  it  out  of  the  house  and  concealed  it,  for  fear  of 
people  taking  it.  She  said  that  the  prisoners  were  two 
of  the  party  that  came  into  the  house,  and  that  one 
Walters  was  the  third,  but  could  not  say  which  de- 
manded the  gun. 


m 


■^',! 


the 

lict- 

Ifelo- 

one 
Iwith 
Ltute. 
iame, 


A  policeman  was  the  next  witness,  who  swore  that 
he  and  his  party  had  information  of  this  attack  being 
intended,  and  that  they  concealed  themselves,  and  saw 
the  party  come  to  the  house  and  push  in  the  door,  and 
heard  them  demand  the  gun,  and  saw  one  of  them  come 
out;  heard  him  tell  another  whom  they  had  left  as  a 
watch,  that  there  was  no  gun  there,  and  he  then  pro- 
posed that  they  should  go  to  another  house ;  upon  v/hich 
another  came  out  and  said,  "damn  you,  Jones,  come  in 
"  again,  and  we'll  either  kill  her  or  have  the  gun."   That 


w 


Tr  i 


m 


f' 


m 

f 


'.  "4 


r^i 


I  I 


149 


JEBB'S  RESERVED  CASES. 


[May  8 


they  then  went  in,  and  the  police  attempted  to  seize 
them,  and  after  a  violent  resistance,  succeeded  in  arrest- 
ing the  prisoners  and  Walters,  who  was  in  custody,  but 
was  not  put  upon  his  trial. 

The  learned  Chief  Justice  left  the  case  to  the  Jury, 
who  found  the  prisoners  guilty ;  but  he  reserved  for  the 
consideration  of  the  Judges  the  question  whether  this 
demand  of  a  gun,  which  was  not  in  the  house,  from  a 
person  not  the  owner,  and  who  had  not  then  the  posses- 
sion of  it,  supported  the  indictment  under  the  Statute  9 
G.  IV.  c.  55,  s.  6  (a). 

Eleven  Judges  {Dolierty,  C.  J.  C.  Pleas,  being 
absent)  unanimously  held  that  the  conviction  was  right. 


(a)  Repealed  by  1  Vict.  c.  87;  but  s.  7  of  the  latter  contains  similar  provisions, 
as  far  as  this  case  is  concerned. 


[*150] 


THE  KING  V.  CHARLES  CONNOR. 


An  indictment  for  receiving  stolen  pigs  in  Londonderry,  is  supported  by  evidence 
that  the  pigs  were  first  brought  to  the  prisoner  in  Donegal,  and  afterwards  sold 
by  him,  slaughtered,  in  Londonderry. 


Charles  Connor  was  indicted  and  tried  before  Johnson, 
J.,  at  the  Spring  Assizes  for  Londonderry,  in  1833,  for 


^MUQII; 


'*; 


.^ 


(dcnce 
Us  sold 


ison, 
Lfor 


1833.] 


REX   ».   CONNOR. 


150 


feloniously  receiving,  at  Londonderry,  two  pigs,  know- 
ing them  to  have  been  stolen,  the  goods  of  Samuel 
Ferguson.  Samuel  Ferguson  proved  that  he  lived  in 
the  county  of  Donegal,  and  that  on  the  morning  of  the 
24th  of  February,  two  pigs  of  his  had  been  stolen,  and 
that  in  two  days  after,  ho  saw  the  same  pigs  slaughtered 
on  the  premises  of  James  Hyde,  in  the  city  of  London- 
derry. James  Hyde  proved  that  he  bought  the  pigs  in 
question  from  the  prisoner,  in  Londonderry,  on  the  24th 
of  February ;  they  had  been  killed  when  the  prisoner 
brought  them  to  him.  They  were  afterwards  identified 
by  Samuel  Ferguson.  Edward  Dogherty  proved  that  he 
lived  in  the  county  of  Donegal;  that  he  had  killed  two 
pigs  on  the  24th,  at  the  desire  of  the  prisoner,  who  had 
brought  them  to  him  at  his  house,  and  that  the  prisoner 
said  he  had  bought  them. 

It  appeared  by  evidence  on  the  part  of  the  prisoner, 
that  on  the  day  in  question,  three  men  brought  two  pigs 
to  the  house  of  the  prisoner,  who  lived  in  the  county  of 
Donegal,  and  asked  him  to  get  them  killed  for  them. 
These  n:.en  had  left  the  country  at  the  time  of  the  trial, 
and  were  not  men  of  good  character. — The  prisoner  was 
found  guilty. 

After  the  verdict  had  been  given  in,  it  was  objected 
that  the  indictment  was  for  receiving  pigs  in  the  county 
of  Londonderry,  knowing  them  to  have  been  stolen. 
That  the  word  "pigs,"  in  an  indictment,  must  be  taken 


I 


'.4 


..rf*" 


a 


* 


m 


1iP 


ill 


Ml 

m 

p 

i  w  , 

-  Ji 


■I :  ! 


^■;J 


•151 


JEBD'S   RESERVED   CASES. 


[Mays 


I 


to  mean  *  "living  pigs;"  that  after  pigs  are  killed,  they 
cease  to  be  pigs,  and  are  pork;  and  that  it  did  not  appear 
that  these  pigs  had  been  ever  alive  in  the  county  of 
Londonderry ;  and  that  when  the  prisoner  received  the 
pigs,  it  was  in  the  county  Donegal,  and  that  the  indict- 
ment should  have  laid  the  offence  in  that  county,  and. 
that  the  prisoner  should  have  been  tried  in  that  county. 
The  learned  Judge  respited  sentence,  and  reserved  for 
the  consideration  of  the  Judges  the  following  questions : 
— First,  did  the  evidence  support  the  indictment?  and 
secondly,  if  it  did  not,  as  the  prisoner  had  been  con- 
victed, what  course  should  be  taken  to  discharge  him 
from  such  conviction,  and  to  make  him  amenable  to 
justice?  The  learned  Judge,  in  reserving  these  ques- 
tions, referred  to  the  cases  of  Rex  v.  Edrvards,  Russ.  & 
Ry.  497,  and  Rex  v.  PucJcering,  1  Mood.  C.  C.  242. 

Eleven  Judges  {Smith,  B.,  being  absent,)  were  unani- 
mously of  opinion  that  the  conviction  was  right. 


Th] 
Ass. 
taini 
dene 
that 
6th  c 
"  afor 
"  sen 
"othe 
"jure 
"dis| 
"fullj 
"in  til 
"Kin^ 
"  tilitj 
"and 
"  cour 
"  obedl 
"  armsl 
''Loni 
"  solici 


i='l, 


1 


1833.] 


REX  V.  PETTIT. 


151 


THE  KING  V.  MICHAEL  PETTIT. 


life 


Indictment  for  inciting  persons  not  to  enter  into  the  employment  of  R.  S.  Tlie 
evidence  hIiowcU  that  tlicso  pcrsonH  liuil  entered  into  tlic  eniplnyinent  of,  nnd 
wori<ed  for  R.  S,  The  prisoners  heinjj  <-  "viitcd,  two  rpicstioiis  were  reserved; 
first,  whether  the  offence  eiiniffed  wiis  nn  uifencc  at  common  luw;  iind  secondly, 
if  it  were,  wiietiier  tlie  evidence  supported  tiio  indictment,  field,  that  the 
indictment  was  bud,  e.nd  the  cotiviclion  wrong. 


The  prisoner  was  tried  before  Moore,  J.,  at  the  Summer 
Assizes  at  Longford,  in  1833,  upon  an  indictment  con- 
taining thirteen  counts.  It  was  conceded  that  the  evi- 
dence could  not  support  all  the  counts,  but  it  was  urged 
that  there  was  evidence  to  go  to  the  jury  on  the  5th  and 
6th  counts,  which  were  as  follows: — "And  the  jurors 
"aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
"  sent  that  the  said  *  Michael  Pettit,  with  divers  [*152] 
"  other  persons,  to  the  number  of  200  or  more,  to  the 
"jurors  aforesaid  at  present  unknown,  being  such  evil 
"  disposed  persons  as  aforesaid,  and  wickedly,  unlaw- 
"  fully,  and  maliciously  devising  and  intending  to  excite 
"  in  the  minds  of  the  liege  subjects  of  our  said  Lord  the 
"  King  hereinafter  named,  a  spirit  of  resistance  and  hos- 
"  tility  to  the  laws  of  this  realm,  and  to  injure,  aggrieve, 
"  and  damnify  the  said  Robert  Sproule,  for  and  on  ac- 
" count  of  his  the  ^m.di' Robert  Sprouk's  loyalty  and 
"  obedience  to  the  said  laws,  on,  &c.,  with  force  and 
"arms,  at  Granard  aforesaid,  in  the  said  county  of 
"  Longford,  unlawfully,  wickedly,  and  maliciously  did 
"  solicit,  incite,  instigate,  advise,  and  endeavour  to  pro- 


'  m' 


,„*i""' 


m 


!  '»  Ml 


i 


■  ■Air 


■■■6-]t 


152 


JEBB'S  RESERVED  CASES. 


h 


m 
'■'1  f 


[Miclidcliiias 


"  cure  divers  other  liege  subjects  of  our  said  Lord  the 
*'  King,  then  and  there  being,  that  is  to  say,  Charles 
"  M  'Neal,  Francis  Blealceleij,  and  Christopher  Elliot,  la- 
"bourers,  and  then  and  there  being  about  to  be  em- 
*  ployed  as  labourers,  and  to  enter  into  the  service  of 
"  the  said  Robert  Sproule,  not  to  labour  or  work  for  the 
*'  said  Robert  Sjjrouk,  or  to  enter  into  the  service  and 
"  employment  of  the  said  Robert  Sproule,  to  the  great 
"  damage  of  the  said  Robert  Sproule,  to  the  evil  example 
"  of  all  others  in  the  like  case  offending,  and  against  the 
"  peace."  The  sixth  count  was  the  same  as  the  fifth, 
leaving  out  the  names  of  the  labourers. 

The  evidence  in  support  of  this  indictment  was  as 
follows. — The  three  persons  named  in  the  fifth  count 
stated,  that  in  the  month  of  July  they  were  employed 
to  work  for  Mr.  Sproule,  a  magistrate  in  the  county  of 
Westmeath ;  they  were  fourteen  in  number,  who  lived 
in,  and  were  to  come  from,  the  county  Fermanagh.  On 
the  evening  of  the  12th  of  July  they  went  into  the  inn 
[*153]  of  Granard  on  their  *way  to  Mr.  Sproule^ s. 
The  traverser  (who  lived  at  the  opposite  side  of  the 
street)  came  in  and  asked  where  they  were  going ;  they 
said  to  the  county  Westmeath  to  work  for  Mr.  Sproule. 
The  traverser  said  they  were  foolish  in  going  to  work 
for  Mr.  Sproule,  for  that  no  one  would  work,  or  get 
leave  to  work  for  him,  because  of  his  being  a  friend  to 
tithes,  and  of  his  taking  a  ready  method  of  lifting  tithes; 
he  then  went  out  of  the  house  and  returned  after  a  little. 


iii^ui^^ 


lies; 
ttle. 


i»33; 


REX   0.   PETTIT. 


l.>3 


and  advised  them  to  go  home.  On  cross-examination 
thoy  said,  they  were  in  Mr.  Sproulcs  [)ay  that  day; 
they  were  to  have  l.v.  'M.  per  day  for  every  day,  inclu- 
ding that  day,  and  a  day  for  their  return  home;  and 
when  at  work,  to  have  potatoes,  and  milk,  and  beds  in 
addition.  Tiiey  said  it  was  Mr.  Hiirleij  who  proposed 
to  tiiem  to  go  to  work  in  Westmeath,  and  told  them  the 
terms  of  payment,  to  which  they  agreed.  They  set 
out,  and  slept  the  night  of  the  11th  of  Jult/  at  Wattle 
Bridge,  and  considered  themselves  in  Mr.  Sproule's  ser- 
vice, and  at  his  expense  from  that  day  out.  They  said 
when  they  went  out  of  the  inn,  there  were  thirty  persons 
or  better  in  the  street,  who  said  nothing  to  them.  The 
people  did  not  hear  the  traverser's  words,  which  were 
uttered  in  the  room  of  the  inn,  no  one  being  present  but 
their  party  and  the  traverser;  but  seeing  the  people  in 
the  street  they  were  in  dread,  and  asked  the  sergeant  of 
police  to  put  them  out  of  the  town,  and  they  were 
accordingly  escorted  about  a  mile.  They  went  on  and 
worked  for  Mr  Sproule,  and  after  a  time  went  home, 
and  returned  again  to  his  work ;  they  did  not  see  the 
traverser  in  the  street  after  he  left  the  inn.  The  ser- 
geant of  police  deposed,  that  the  traverser  lived  opposite 
the  inn,  and  that  he  met  him  coming  out  of  the  inn. 
Mr.  Willington,  chief  constable  of  police,  deposed,  that 
he  saw  the  party  of  Fermanagh  men  going  up  the  street, 
*  and  thinking  they  were  recruits  for  the  police,  [*154] 
sent  the  sergeant  after  them,  and  on  his  return  ordered 

.  the  police  out. 

25 


,,» 


tf 


;    j 

1 

^    1 

1 

[' 

■  \ 

.}. 

■'!■ 

* 
1 

1 

!  1 

1 

m 

,-'« 

ri 

(g'C 

■!i! 

■6 

r 

•%\ 

: 

u 

'ill 

,j«2:      1 

iisy 

'     i  ' 

'ri' 

,.^'    '1 

_i\ 

'  ,."<"'     1 

now'                    ! 

;:  /IJi' 

i 

':-;^'. 

' .  i^' 

•yj- 

c     * 
'1-  1  i 

I'TS*"" 

'   ■< 

''■'■•"'. 

1 

:':.■':::■ .    ' 

f 

''i^ 

•  1 

'■}■  1 


m 
ll 


f:,l,   !!  I 


Ifi4 


JEBB'S   RESERVED  CASES. 


[Miohaelmat 

The  traverser's  counsel  insisted,  that  the  matter 
charged  by  the  fifth  and  sixth  counts  did  not  amount  to  an 
oflfenoe  at  common  law,  but  could  at  the  utmost  be  only 
the  foundation  of  a  civil  action;  and  that  even  supposing 
it  to  amount  to  an  offence  at  common  law,  the  evidence 
did  not  support  the  charge;  the  allegation  being  that 
the  persons  in  question  were  about  to  be  employed  and 
to  enter  into  the  service  of  Mr.  Sprmile,  whereas  it  was 
contended  that  the  evidence  proved  that  at  the  time  the 
words  were  spoken  they  were  actually  engaged,  and 
had  entered  into  his  employment,  and  that  there  was 
nothing  in  these  counts,  or  any  other  in  the  indictment, 
which  charged  the  traverser  with  soliciting,  inciting, 
advising,  or  endeavouring  to  procure  these  persons  to 
leave  their  employment,  or  discontinue  working  for 
Mr.  Sproule. 


<(  I 


The  learned  Judge  reserved  both  points  for  the  con- 
sideration of  the  Judges:  first,  whether  the  matter, 
alleged  in  the  fifth  and  sixth  counts  amounted  to  an 
offence  at  common  law  ?  And,  secondly,  supposing  a 
criminal  offence  to  be  legally  charged  in  these  counts, 
whether  the  evidence  was  sufficient  to  sustain  such 
charge  ? 

Eight  Judges  {Johnson,  J.,  Pennefather,  B.,  Torrens, 
J.,  and  Foster,  B.,  being  absent)  were  unanimously  of 
opinion,  that  the  indictment  was  bad,  and  that  the  con- 
viction was  wrong. 


■'■>■*  M. 


7< 


1831.] 


ANONYMOUS. 


Hi" 


*  ANONYMOUS. 


An  indictment  ii  maintainable  on  tlie  firfit  itection  of  tho  Party  Procoiiioni  Act, 
(3  &,  3  W.  4,  0.  118.)  taliun  by  itkulf. 


At  the  Summer  Assizes  for  the  County  of  Armagh  in 
1833,  fourteen  persons  were  indicted,  and  tried  before 
Moore,  J.,  upon  an  indictment  founded  upon  the  first 
section  of  the  statute  2  &,  3  W.  IV.  c.  118  (a),  charging, 
"  That  they,  with  others,  to  the  number  of  100,  on  the 
"12th  of  July,  (4  W.  IV.),  at  Lurgan,  did  meet  and 
"  parade  together,  and  join  in  procession  in  a  body,  for 
'*  the  purpose  of  celebrating  and  commemorating  a  cer- 
**  tain  anniversary  and  political  event,  relating  to,  and 
"  connected  with,  certain  religious  distinctions  and  dif- 
"  ferences  between  certain  classes  of  his  Majesty's  sub- 
ejects;  that  is  to  say,  the  anniversary  of  the  battle  of 
"Aughrim,  and  the  political  event  commonly  called  the 
"  Battle  of  Aughrim,  and  that  they  did  then  and  there 
"  bear,  wear,  and  have  amongst  them,  certain  banners, 
"  emblems,  flags,  and  symbols,  the  display  whereof  was 
"  then  and  there  calculated,  and  did  then  and  there  tend 
"  to  provoke  animosity  between  his  Majesty's  subjects 
"of  different  religious  persuasions;  that  is  to  say,  his 
"  Majesty's  subjects  of  the  Protestant  religious  persua- 


.♦w"  '  ■ 


,11  J' 
'■  ■  '.**' 

:i3" 


I '  'J 


:3      "     '' 


m 


(a)  This  Act,  which  expired  in  1838,  has  been  continued  by  the  1  &  2  Vic.  c.  34, 
for  five  years,  from  July  4, 1838,  and  from  thenceforth  to  tlie  end  of  tlio  next  8ea> 
flion  of  parliament. 


li'fli 


V'' 


155 


JEBB'S  RESERVED  CASES. 


[January  15 


Mi 


r    ' 


"  sion,  and  his  Majesty's  subjects  of  the  Roman  Catholic 
"  religious  persuasion,  against  the  peace  and  statute." 
There  was  a  second  count,  omitting  the  word  "reli- 
gious;" a  third  count,  the  same  as  the  first,  only  stating 
the  anniversary  to  be  the  Battle  of  the  Boy  tie;  and  a 
fourth  count  the  same  as  the  third,  only  omitting  the 
word  '*  religious."  When  the  evidence  for  the  prosecu- 
tion was  closed,  the  counsel  for  the  traversers  called 
[*156]  upon  the  *  learned  Judge  to  direct  an  acquittal, 
insisting  that  the  provisions  of  the  several  sections  of 
the  statute,  on  which  the  indictment  was  framed,  formed 
but  one  offence,  and  were  to  be  taken  together,  and  that 
the  legislature  having  created  a  new  offence,  and  ap- 
pointed and  prescribed  a  particular  remedy  for  such 
new  offence,  no  other  method  of  proceeding  could  be 
pursued  consistently  with  the  ordinary  rules  of  legal 
construction,  and  the  necessary  interpretation  of  the 
words  of  the  statute  (a). 

The  learned  Judge  left  the  case  to  the  Jury,  stating 


(a)  Thn  Bocond  section  of  the  Act  gave  authority  to  one  or  more  magistrates,  to 
give  notice  to  the  meeting  to  disperse;  and  the  tiiird  section  gave  a  summary  juris- 
diction to  two  magistrates,  to  punisli,  in  case  of  refusal,  by  one  montli's  imprison- 
ment for  tlie  first  offence ;  "  and  for  a  second,  or  any  subsequent  oifencc,  ap^ainst 
the  provisions  of  this  Act,"  by  three  months'  imprisonment.  Tlie  objection  in  the 
case  in  the  text  proceeded  on  the  suppouition,  tliat  a  summary  tribunul  being  estab- 
lisiied  for  the  trial  of  the  offences  in  the  third  section,  it  was  the  only  tribunal 
which  had  jurisdiction  over  the  oftcnco  created  by  the  first  section.  The  first  sec- 
tion,  however,  makes  certain  acts  amoi'nt  to  a  misilemeanor,  and  punishable  accord- 
ingly; tlic  other  sections,  appear  chiefly  of  a  preventive  nature,  making  resistance 
to  the  magistrate's  authority  a  distinct  ofTenee,  punishable  in  a  summary  maniicr. 
The  words  in  the  third  section  "against  the  provisions  of  tliis  Act"  are  ijttmhle)  to 
be  construed,  "  in  this  section  mentioned." 


•■ri 


1834]                                     REX   V.   BRYAN.                                          156 

—r. 

it  to  be  his  opinion,  that  the  first  section  of  the  Act  was 

sufficient  hy  itself  to  support  the  indictment;  and  after 

a  long  deliberation  they  acquitted  eleven  of  the  tra- 

versers,  and  found  three  of  them  guilty.  The  learned 
Judge,  however,  respited  the  judgment,  in  order  to  have 
the  opinion  of  the  Judges  upon  the  abstract  question, 
whether  upon  the  first  section  of  the  statute,  the  indict- 
ment could  be  maintained. 


U'li 


m 


■son- 
gainst 
n  the 
ssta  fa- 
bun  al 
it  sec. 
xord- 
ilance 
inner. 
lie)  to 


Ten  Judges  {Smith,  B.,  and  Pennefather,  B.,  being 
absent,)  were  unanimously  of  opinion,  that  the  convic- 


tiorf  was  right. 


THE  KING  V.  MARTIN  BRYAN. 


[*157] 


The  prisoner  was  convicted  upon  a  confession  made  to  a  person  who  cautioned 
him  not  to  say  any  thing  to  criminate  Iiimself ;  but  this  confession  was  nicrely 
the  second  repetition  of  a  former  confession  made  to  another  person  who  had 
previously  said  to  tiie  prisoner,  "The  evidence  at  tlje  inquest  was  so  clear  against 
you,  tiiat  tiiere  can  be  no  doubt  you  are  the  guilty  man."  Held,  that  tlic  con- 
viction was  right. 


Martin  Bryan  was  tried  and  convicted  before  Johnson, 
J.,  at  the  Spring  Assizes  for  Wexford,  in  1834,  for  the 
murder  of  Walter  Brien.  The  deceased  was  a  young 
man  about  16  years  of  age,  lind  the  son  of  a  widow  of 
the  name  of  Brien,  with  whom  the  prisoner  had  lived 
as  steward :  she  had  also  a  younger  son  and  a  daughter. 


-:€. 


;i  il 


1 ,1 1  |J 


3r  ; 


*«•"* ' 


I 


M 


157 


JEBB'S    RESERVED  CASES. 


[April  15 


The  prisoner  slept  in  the  barn  on  the  night  previous  to 
the  murder,  and  had  done  so  for  some  time  before,  vv^ith 
another  man  of  Uie  name  of  Bryan  also  in  Mrs.  Brien^s 
employment.  On  the  morning  of  the  day  on  which  the 
murder  was  committed,  the  prisoner  was  seen  by  a  maid- 
servant at  an  early  hour  in  the  hall  of  the  house.  From 
this  hall  the  stairs  went  up  leading  to  the  bedchamber. 
After  this  time  the  younger  brother  of  the  deceased,  a 
boy,  who  slept  with  him,  called  to  the  maid-servant  to 
come  up  to  his  brother;  she  went  up  and  found  him  in 
his  bed  covered  with  blood ;  he  had  his  head  deeply  and 
heavily  cut  as  if  with  a  hatchet.  There  was  a  gl'eat 
deal  more  evidence  on  the  part  of  the  crown,  but  noth- 
ing sufficient  to  bring  home  this  crime  to  the  prisoner; 
and  had  the  case  rested  on  this  evidence  he  must  have 
been  acquitted.  Neither  did  there  appear  in  the  course 
of  the  trial  the  slightest  grounds  which  could  have 
induced  the  prisoner  to  commit  the  crime. 

The  murder  was  committed  on  the  12th  of  August; 
on  the  16th  of  the  same  month  ihe  prisoner  was  arrested, 
and  Mr.  Barry,  a  magistrate,  saw  the  prisoner  in  cus- 
tody. The  prisoner  said  to  Mr.  Barry  that  he  wished 
to  see  the  Reverend  Mr.  G" Flaherty,  a  Roman  Catholic 
[*158]  clergyman.  *  Mr.  Barry  at  this  time  held  out 
neither  hope  nor  threat  of  any  kind,  nor  did  he  give 
him  any  caution  not  to  criminate  himself.  Mr.  Barry 
sent  for  Mr.  0' Flaherty,  who  was  then  at  Mr.  Barry's 
house;  Mr.  0' Flaherty  came,  and  Mr.  Barry  left  them 


iBkm 


'^^^^us^m 


IN 

M 


[ust; 

5ted, 
cus- 

ished 
lolic 
out 
give 
\arry 
|rry's 
them 


1834.]  REX  V.  BRYAN,  158 

together.  Mr.  OFlaherty  was  examined,  and  he  stated 
that  on  seeing  the  prisoner  he  appeared  greatly  agitated, 
and  the  witness  said  to  him,  "  The  evidence  at  the  in- 
"  quest  was  cso  clear  against  you,  that  there  can  be  no 
"  doubt  you  are  the  guilty  man."  The  witness  however 
was  not  then  called  on  to  state  what  passed  between 
them  as  to  the  murder,  but  the  witness  said  to  the  pri- 
soner, "  Have  you  any  objection  to  state  to  Mr.  Barry 
"what  you  have  stated  to  me?"  He  said  that  he  had 
not.  Mr.  Barry  was  then  called  in,  and  the  prisoner 
stated  in  the  presence  of  Mr.  Barry  what  he  had  before 
mentioned  to  Mr.  C Flaherty.  A  difficulty  having  been 
expressed  whether,  under  the  circumstances  of  the  case 
and  the  announcement  to  the  prisoner  of  his  guilt  in  the 
terms  above  mentioned  by  his  clergyman,  what  had 
been  stated  by  the  prisoner  could  be  received  as  evi- 
dence, the  counsel  for  the  crown  said  they  would  call 
Mr.  Barry  again,  to  state  what  passed  between  him  and 
the  prisoner  at  a  subsequent  interview,  in  which  Mr. 
Barry  had  cautioned  him  not  to  say  any  thing  to  crimi- 
nate himself  Mr.  Barry  was  then  called,  and  stated 
that  he  had  another  interview  with  the  prisoner  on  the 
evening  of  the  same  day  on  which  he  and  Mr.  G' Fla- 
herty had  seen  the  prisoner,  as  he  had  already  stated, 
and  that  in  this  last  interview  he  cautioned  him  not  to 
say  any  thing  to  him  or  the  police  to  criminate  himself. 
Mr.  Barry  was  then  allowed  to  state  what  the  prisoner 
on  this  occasion  said  to  him ;  and  he  accordingly  said 
that  what  the  prisoner  stated  on  the  present  occasion 


'"  1l 

■    -'   ,1 

i''vl  ■ 

rjW' 


■m 


W 


■'ill 


108 


JEBB'S   RESERVED  CASES. 


[April  15 


(  ■■  ii 

i ;  ■ 

!  ■''  . 

I  ■ 


was  in  every  respect  the  same  vv^ith  what  he  had  stated 
[*159]  at  the  prior  *  meeting  between  him  and  Mr. 
O' Flaherty.  The  prisoner  said  he  was  the  person  who 
committed  the  murder,  and  that  no  one  else  was  con- 
cerned in  it;  that  he  had  killed  the  deceased  with  the 
pole  of  a  hatchet,  and  had  given  him  two  blows  on  the 
head ;  he  had  got  the  hatchet  in  the  parlour ;  the  de- 
ceased lay  on  the  outside  of  the  bed  and  his  younger 
brother  on  the  inside ;  he  gave  him  two  blows,  and  the 
deceased  never  stirred.  This,  as  far  as  related  to  the 
commission  of  the  murder,  was  the  confession  made  by 
the  prisoner,  as  stated  by  Mr.  Barry. 

The  learned  Judge  suffered  the  evidence  to  go  to  the 
jury,  and  the  prisoner  was  convicted,  and  the  usual 
sentence  was  passed.  In  the  progress  of  the  trial 
Johnson,  J.,  communicated  with  Joy,  C.  B.,  who  sat  in 
the  Civil  Court,  and  laid  the  matter  before  him.  They 
both  agreed  that  the  best  course  to  pursue  would  be  to 
receive  the  evidence  and  let  it  go  to  the  jury,  and  to 
respite  the  execution  of  the  sentence  in  order  that  the 
opinion  of  the  Judges  might  be  taken,  whether,  under 
the  circumstances  stated,  the  confession  was  admissible 
evidence  as  against  the  prisoner. 

Eleven  Judges  {Joy,  C.  B.,  being  absent)  unani- 
mously held  that  the  conviction  was  right. 

See  ante,  p.  15,  The  King  v.  Gibney,  and  note. 


"of 

"7 

"Ex 

"sum 

"tob( 

"the 


The 
my;  b 


lii  1 

w 

11 

"■-".»*«»»« 


n  m  ■!  II 


1834.] 


EXCISE   PRESENTMENT,   GALWAY. 


1C0» 


^m 


mm 


*  IN  the  Matter  of  a  PRESENTMENT  by  the  Grand  Jury 
of  the  Town  of  GALWAY,  for  the  COLLECTOR  OF 
EXCISE. 


;  !;,j ; 


Inani- 


The  Grand  Jury  having  rejected  a  presentment  for  the  repayment  of  tlie  Collector 
of  Excise  under  the  7  G.  4,  c.  74,  s.  56,  and  tlie  Judge  at  the  same  Assizes 
having  omitted  to  add  the  amount  to  the  Treasurer's  warrant  under  s.  ]32of 
the  same  Act:  HeU,  that  tiie  Judge  at  the  Assizes  next  but  one  afiter  had 
authority  to  order  it  to  be  so  added. 

At  the  Spring  Assizes  for  the  County  of  the  Town  of 
Galwaij,  in  1833,  the  following  presentment  was  offered 
to  the  grand  jury : — **  We,  the  grand  jury  at  said  assizes, 
**  do  hereby  present  the  sum  of  twenty  pounds,  to  be 
**  levied  off  said  county,  and  paid  to  the  treasurer,  and 
"  to  be  repaid  by  him  to  the  collector  of  excise  at  Gai- 
"  way,  being  so  muc'i  advanced  to  the  Inspector-General 
"  of  Prisons,  as  per  the  annexed  receipt,  under  the  Act 
"7  G.  IV.  c.  74: — Received  from  the  Collector  of 
"  Excise  for  the  County  of  the  Town  of  Galway,  the 
"  sum  of  twenty  pounds  sterling,  being  the  sum  directed 
*'  to  be  paid  to  me,  as  Inspector-General  of  Prisons,  by 
"  the  Act  7  G.  IV.  c.  74,  s.  56,  for  my  inspection  and 
"  report  on  the  gaol  of  that  county,  for  the  year  ending 
"  Dec.  1832.     Dated  this  28th  Dec.  1832. 

"JAMES  PALMER,  Inspec.-Gen.  of  Prisons." 

The  above  presentment  was  rejected  by  the  grand 
jury ;  but  the  Judge  who  presided  at  those  assizes  omit- 
26 


mv ' 


.:(l'""  ' 


iA: 


I  * 


i 

tji- :' 

j 

ml   1 

'i  i 

1:   1 

160 


JEBB'S   RESERVED  CASES. 


[May 


ted  to  order  the  above  sum  of  twenty  pounds  to  be  added 
to  the  warrant  of  the  treasurer,  for  the  purpose  of  being 
levied,  pursuant  to  the  provisions  of  the  7  G.  IV.  c.  74, 
ss.  5G,  132.  At  the  Spring  Assizes,  in  1834,  this  pre- 
sentment was  again  "ent  to  the  grand  jury,  as  also  a 
presentment  with  a  similar  receipt  for  the  year  1833. 
The  grand  jury  rejected  both  presentments,  and  the 
matter  of  both  presentments  was  then  brought  before 
[*161]  Burton,  J.,  the  Judge  *  of  Assize,  who  directed 
the  sum  of  twenty  pounds,  for  the  year  1833,  to  be 
added  to  the  treasurer's  warrant;  but  with  respect  to 
the  presentment  for  the  year  1832,  it  was  insisted  by 
the  grand  jury,  that  they  had  no  authority  under  that 
Act  to  make  the  presentment,  which  it  was  contended 
could  be  made  only  by  the  grand  jury  at  the  Spring 
Assizes  of  1833,  under  the  56th  section,  and  consequently 
that  tie  Judge  at  any  subsequent  assizes  had  no  juris- 
diction or  authority  under  the  132d  section,  to  order 
it  to  be  added  to  the  treasurer's  warrant  for  those  as- 
sizes; and  this  question  Burton,  J.,  reserved  for  the 
consideration  of  the  Judges. 

All  the  Judges  being  present,  seven  (Bushe,  C.  J., 
Joy,  C.  B.,  Moore,  J.,  Jebb,  J.,  Burton,  J.,  Vandeleur, 
J.,  and  Foster,  B.,)  were  of  opinion,  that  the  Judge 
had  authority  to  make  the  order  in  question,  under 
section  132  of  the  7  Geo.  IV.  c.  74.  The  remaining 
five  Judges  were  of  a  contrary  opinion. 


(a) 
force  is| 
also  thd 
tJiose  of 
who  shJ 
army,  '| 
c.  6,  s. 
shall  bel 
the  regiJ 
and  vagi 
prelenccl 
at  the  tif 
as  a  (lose 


—  **^-^  vUkJn 


iT  irt  a 


1834. 


REX   V.   M'CLUSKY. 


1G3» 


*  THE  KING  V.  JEREMIAH  M'CLUSKY. 


The  traverser  was  indicted  under  the  Mutiny  Act  of  1834,  for  voluntarily  delivering 
himself  up  as  a  deserter,  and  was  also  presented  as  a  vagrant.  The  Jury  found 
against  the  traverser  upon  the  indictment,  and  for  him  upon  the  presentment. 
Held,  that  no  judgment  could  be  pronounced  against  him,  and  that  ho  ought  to 
be  discharged. 


the 


At  the  Spring  AvSsizes  for  the  County  of  Armagh^  in 
1834,  Jeremiah  M'Clushj  was  tried  before  Moore,  J.,  on 
an  indictment  under  the  23d  section  of  the  Mutiny 
Act  (a) :  "  For  that  he  did  voluntarily  deliver  himself 
"up  as  a  deserter  from  his  majesty's  forces."  He  was 
at  the  same  time  presented  in  the  ordinary  way  as  an 
idle  vagrant  without  any  settled  place  of  residence,  and 
so  forth. 

The  jury  found  on  the  first  indictment,  that  he  did 
voluntarily  deliver  himself  up  as  a  deserter  from  his 


!»«< 


.J 


■''I!!'' 


■  t  .'1 


h-\ 


iiji 


(a)  The  Mutiny  Act  for  that  year  was  the  4  W.  4,  c.  6.  That  at  present  in 
force  is  the  3  Vict.  c.  6,  and  the  corrcs|)onding  section  ap,»licablc  to  this  case  is 
also  the  23d.  *Thc  provisions  of  the  latter  enactment  are  somewhat  diifercnt  from 
those  of  the  4  W.  4.,  c.  6,  s.  23.  The  4  VV.  4,  c.  6,  s.  23,  enacts,  that  any  person 
who  shall  voluntarily  deliver  himself  up  as  a  deserter,  shall  be  liable  to  serve  in  the 
army,  "or  shall  be  liable  to  be  punished  as  a  rogue  and  vagabond."  The  3  Vict, 
c.  6,  s.  23,  enacts,  thai  any  person  vohuitarily  delivering  iiimself  up  as  a  deserter, 
shall  be  liable  to  serve,  &c.,  "  and  in  case  such  person  shall  not  be  a  deserter  from 
the  regiment  stated  in  his  confession,  he  shall  be  liable  to  be  punished  as  a  rogue 
and  vagabond,  or  may  be  prosecuted  and  punished  for  obtaining  money  under  false 
pretences;" — "and  if  the  person  so  confessing  himself  a  deserter  shall  be  serving 
at  the  time  in  any  of  her  Majesty's  forces,  he  shall  be  deemed  to  be  and  di'ult  with 
as  a  deserter,"  (i.  e.  handed  over  to  the  military  power). 


I' 


I 


II: 


: 
1.1 . 1 


I' 


! 


188 


JEBB'S   RESERVED  CASES. 


[Juno  14 


majesty's  forces,  but  found  for  the  traverser,  and  against 
the  presentment,  on  the  second  charge.  Under  the 
Mutiny  Act  one  of  the  consequences  of  voluntarily 
deUvering  himself  up  as  a  deserter  was  liability  to  be 
punished  as  a  rogue  and  vagabond;  and  the  jury  having 
found  against  the  presentment,  the  learned  Judge  did 
not  conceive  that  he  had  authority  to  pronounce  any 
sentence.  It  was  urged,  however,  on  behalf  of  the  crown, 
[*163]  (it  being  a  state  prosecution,)  that  the  *  prisoner 
having  voluntarily  delivered  himself  up  as  a  deserter, 
he  thereby  became  liable  to  be  punished  as  a  rogue 
and  vagabond,  without,  and  even  against,  the  finding  of 
a  jury,  that  he  was  so;  but  it  appeared  to  the  learned 
Judge  that  whatever  might  be  the  strict  construction  of 
the  23d  section  of  t!ie  statute,  he  ought  not  to  punish 
the  prisoner  as  a  vagrant  after  it  had  been  negatived 
that  he  was  such,  upon  a  presentment  prepared  ano 
presented  by  the  crown  counsel,  and  to  sustain  which 
the  only  evidence  given  was  his  having  delivered  him- 
self up  as  a  deserter;  and  he,  therefore,  reserved  for  the 
consideration  of  the  Judges  the  question,  whether  in 
this  case  any,  and  if  any,  what  judgment  should  be  pro- 
nounced. 

Ten  Judges  {Smith,  B.,  and  Vandeleur,  J.,  being 
absent,)  ruled  that  the  prisoner  should  be  discharged  (a). 


(a)  Quare  as  to  the  exact  meuning  of  "rogue  and  vagabond"  in  the  Mutiny 
Act,  as  applicable  to  Ireland.  As  that  Act  extc;nds  to  both  countries,  it  is  to  be 
presumed  that  the  expression  is  to  have  as  nearly  as  possible  the  same  meaning  in 


I    :^i 


JUm^ 


1834]  ROBERT   HENRY   SOUTHWELL.  16S 

both.  In  England  it  appears  to  be  well  defined;  Bailie's  Caie,  1  Leach,  69G;  but 
in  Ireland,  it  must  mean  cither  a  "vagrant,"  who  (by  a  system  peculiar  to  Ireland,) 
is  to  he  preteuleil  under  the  9  G,  2,  c.  6,  and  31  G,  3,  c,  44;  or  else  an  offender 
under  the  old  Acts  of  33  Hen.  8,  c.  15,  and  10  &  llCur.  1,  e.  4,  wliich  by  the  13 
fi,  14  G.  3,  e.  4G,  arc  Itcpt  in  force  in  the  King's  County,  and  tlio  Cuutilius  of  iir- 
tnagh,  Wexford  and  Wicklow,  Ttie  latter  class  of  Acts  do  not  seem  to  create  an 
indirtible  ofTuncc,  but  merely  to  give  a  summary  authority  to  justices  of  the  peace. 
In  the  case  in  the  text,  the  decision  would  appear  tu  rest  on  this  ground:  If  tiio 
words  "rogue  and  vagabond,"  meant  "vagrant"  under  the  9  G.  2,  c.  6,  and  31  G. 
3,  c.  44,  the  finding  of  the  Jury  on  the  presctitniunt  put  an  end  to  the  question;  and 
if  tiicy  meant  an  ofTendcr  under  the  old  Acts,  those  Acts  gave  no  power  to  the 
Judge  uf  Assize  to  sentence. 


■k 


««««' 


anc 
licli 
lim- 

the 
\x  in 

pro- 


feing 
(a). 


lutiny 
|s  to  be 

ning  in 


IN  the  Matter  of  ROBERT  HENRY  SOUTHWELL,  [*104] 
a  defendant  in  WOOLSEY  v.  SOUTHWELL,  and  oUier 


causes. 


A  person  in  custody  under  an  illegal  arrest  is  entitled  to  be  discharged  from  collu- 
sive detainers  lodged  at  the  same  time,  and  bond  Jidj  detainers  subsequently 
lodged  with  the  same  sheriff;  but  not  from  bond  Jide  detainers  lodged  with  tiio 
marsiial  of  the  niarshalsea,  to  which  lie  had  been  removed  by  habeas  corpus,  upon 
his  own  application.  ' 


In  Michaelmas  Term,  1834,  various  motions  had  been 
made  on  behalf  of  R.  H.  Southwell,  a  defendant  in  seve- 
ral actions  in  the  three  law  courts,  for  his  discharge 
from  cur<tody  at  the  suit  of  various  detaining  creditors. 
Southwell  had  been  arrested  in  June  1834,  by  the  sheriff 
of  the  County  of  Wicklow,  under  a  foiged  writ  of  capias 
ad  satisfaciendum,  purporting  to  have  issued  from  the 
Court  of  Common  Pleas.     The  sheriff  had  also  in  his 


i 


'■"ii 


M 

m 


I  'I 


I 


164  JKBB'S    RESERVED   CASES,  [November  QC 

hands  at  the  time  of  the  arrest  other  writs  which  had 
been  issued  collusively  with  the  plaintiff  in  the  first 
writ  against  the  defendant;  and  several  detainers  were 
laid  on  iiim  after  the  arrest,  and  whilst  in  the  custody 
of  the  sheriff  of  WicJdojv,  by  ho?id  fide  creditors,  and 
without  collusion.  He  subsequently  had  himself  re- 
moved to  the  Marshalsea,  by  habeas  corpus  cum  causa, 
and  after  his  removal  thither  several  other  detainers 
were  lodged  with  the  marshal.  There  were  t'xus  three 
classes  of  detainers : — First,  the  collusive  writs  in  the 
sheriff's  hands  at  the  time  of  the  arrest.  Secondly, 
'bom  fide  detainers  laid  on  after  his  arrest,  and  whilst 
the  defendant  remained  in  the  custody  of  the  sheriff  of 
WicMow;  and  thirdly,  bom  fide  detainers  laid  on  after 
his  removal  to  the  custody  of  the  marshal. 


The  Court  of  Common  Pleas  discharged  the  defend- 
ant  from  the  first  arrest,  and  from  the  detainers  in  that 
Court,  of  the  first  class,  viz.  the  writs  in  the  sheriff's 
hands  at  the  lime  of  the  arrest;  but  took  time  to  uelibe- 
[*1G5]  rate  as  to  the  *  course  to  be  pursued  with  res- 
pect to  the  subsequent  detainers  (a). 

Motions  were  also  made  in  the  Court  of  King's  Bench 
for  discharorinff  the  defendant  from  the  second  and  third 
classes  of  detainers  in  that  Court;  and  the  Court  of 
King's  Bench  took  time  to  deliberate  as  to  the  course 


(a)  Vide  Carson  v.  Sovthwell,  3  liaw  Rec.  N.  S.  94 . 


anoth 

Al 

the 

Judge 

follow 

the  d 

the  fir 

arrest 

B.,  S: 

NEFAT 

opinio; 
the  sec 


r  M\  M 


1834.] 


ROBERT    HENRY    SOUTHWEI.I.. 


165 


to  be  pursued.    The  question  had  been  fully  argued 
both  in  the  Common  Picas  and  in  tlio  Kinjr's  Bench. 


I 


inch 
Ihird 
:t  of 
Kirse 


On  the  last  day  but  one  of  the  term,  a  motion  was 
made  in  the  Court  of  Exchequer  to  discharge  the  de- 
fendant from  the  detainers  of  the  second  and  third 
classes.  The  motion  was  made  upon  notice,  and  was 
not  opposed  by  tlie  detaining  creditors;  and  the  Court 
of  Exchequer  was  informed  by  counsel  that  the  other 
two  law  courts  only  waited  for  the  decision  of  the  Court 
of  Exchequer.  The  Court  of  Exchequer  thereupon 
made  an  absolute  order  (which,  however,  was  after- 
wards changed  into  a  conditional  one,)  for  the  discharge 
of  the  defendant  in  the  cases  before  the  Court.  The 
Courts  of  King's  Bench  and  Common  Pleas  reserved 
their  decision  until  they  should  have  conferred  with  one 
another,  and  with  the  Exchequer. 

All  the  Judges  (except  Johison,  J.,)  being  present^ 
the  case  was  fully  discussed,  and  the  opinions  of  the 
Judges  were  delivered  seriatim.  The  result  was  as 
follows : — First,  all  the  Judges  were  of  opinion  that 
the  defendant  should  be  discharged  from  the  writs  of 
the  first  class,  viz.  those  in  the  sheriff's  hands  when  the 
arrest  was  made.  Secondly,  Seven  Judges  (Joy,  C. 
B.,  Smith,  B.,  Moore,  J.,  *  Burton,  J.,  Pen-  [*166] 
nefather,  B.,  Torrens,  J.,  and  Foster,  B.,)  were  of 
opinion  that  he  should  be  discharged  from  the  writs  of 
the  second  cLss,  viz.  detainers  laid  on  after  the  arrest, 


l«4( 


\C" 

s 
% 

It: 


3 

ml''    , 

..Myr 
uikI 


'   ''i 


m 


.lii! 


i: ' ' 


!       i  'tl 
I 


1C6 


JEBB'S  RESERVED  CASES. 


[Eititer 


and  before  his  removal  to  the  Marshalsea;  and  the  re- 
maining Fouii  Judges  were  of  opinion  that  he  should 
not  be  so  discharged.  Thirdly,  Six  Judges  (Bushe,  C. 
J.,  DoiiERTY,  C.  J.  C.  Pleas,  Moore,  J.,  Burton,  J., 
Vandeleur,  J.,  and  Crampton,  J.,)  were  of  opinion 
that  the  defendant  should  not  be  discharged  from  the 
writs  of  the  third  class,  viz.  the  detainers  laid  on  after 
his  removal  to  the  Marshalsea.  The  other  Five  were 
of  opinion  that  he  should  be  so  discharged  {a). 


(a)  The  following  authorities  wcro  cited  and  coniiidcrod  during  the  diocuRiiion  :— 
1  Suund.  2!)H;  6  G.  1,  c.  21,  b.  .53,  En/r.;  3  Wik  47,  48;  I  Rosc'h  Dankr.  C.  263; 
1  Chitt.  Rpp.  57!)  (18  E.  C.  L.  16!)) ;  9  Ring.  566  (23  E.  C.  L.  .384) ;  2  Moore  »nd 
8c.  634;  2  And.  462;  11  Price,  156;  1  Tidd's  Pr.  21!),  220;  2  W.  Bl.  823;  2  E'o». 
&  P.  282 ;  2  B.  &,  Aid.  743;  1  Dowl.  499 ;  1  New  Rep.  135;  8  B.  &.  C.  769  (15 
E.  C.  L.  769). 


If'' 

\k  - 
1 N''  r 


THE  KING  V.  RICHARD  SANDYS. 


On  the  trial  >*  a  degraded  clergyman,  for  celebrating  a  marriage  between  a  Pro- 
testant and  a  Roman  Catholic,  an  entry,  signed  by  the  Rcgintrar  of  the  Consis- 
torial  Court,  of  the  sentence  of  degradation,  in  a  book  wiiich  contiiincd  also  an 
entry  of  the  previous  proceedings,  is  sufficient  evidence  of  the  degradation. 


The  prisoner  was  tried  before  Smith,  B.,  at  the  Spring 
Assizes  at  JlfaryJoroM^^/f,  in  1835,  on  an  indictment  (a) 


(a)  Under  the  13  6. 1,  c.  3. 


1H35.] 


RKX    .».   HANDYS. 


168 


which  charged  "that  lio  on  Iho  4th  of  Ortohcr,  l^^i, 
"  at  tVc,  was  a  dc^ynulod  ch'p^y'Hii"  <'t'  tlio  United  King- 
"dom  of  KiKjhiml  and  Irchind,  and  tliat  ho  hcin^'  such 
"Ibloniously  and  nnlawfully  did  ccluhrato  a  niarriii;^c 
"between  Wallij  (iraij,  a  protestant,  and  Catherine Don- 
"  ;/('//y,  a  papist."  Tlie  second  count  was  siniihir,  but 
descril)ed  the  ])risoncr  as  a  degraded  *  ehn'gy-  [*lfi7] 
man  of  the  church  of  Irehind,  as  by  law  cstaijiished. 
Tiie  tliird  count  was  I'ko  tlio  second,  for  c(!k.'brating  a 
marriage  between  Wtdlij  (Irai/,  a  reputed  protestant, 
and  Cat/icri)ie  Donncllij,  a  reputed  papist.  The  fourth 
count  described  tlie  prisoner  as  a  Uiyman  })retending  to 
be  a  clergyman,  &c.,  and  as  such  celebrating  a  mar- 
riage between  Wallij  (Jrai/,  a  protestant,  and  Catherine 
Donnel/t/,  a  papist.  The  fifth  count,  describing  the 
prisoner  like  the  fourth,  was  for  celebrating  a  marriage 
between  a  reputed  protestant  and  a  reputed  papist.  The 
sixth  count,  describing  the  prisoner  like  the  first,  was 
for  taking  upon  himself  to  celebrate  a  marriage  between 
Wallij  Gray,  a  reputed  protestant,  and  Catherine  Don- 
nelly, a  reputed  papist. 


I  \ 

ffl     '''I 


,ii*i 


1 
i' 


:> 


'!;ii' 


"J'' 


^  1  '' 


If 


la) 


The  following  were  the  proofs  in  support  of  the  above 
indictments. — Henry  Davis,  clerk  in  the  registry  office 
of  the  dioce.se  of  Leighlin,  produced  the  original  entry, 
got  by  him  in  the  office,  and  which  purported  to  be  a 
sentence  of  degradation  against  Richard  Sa?idi/s,  priest 
and  deacon. — The  Rev.  Thomas  llarpur,  a  beneficed 
clergyman  of  the  established  church,  who  had  been 
27 


167 


JEBB'S   RESERVED   CASES. 


[Easter 


present  at  the  degradation,  identified  the  prisoner  as 
the  object  of  that  sentence.  He  said  that  he  did  not 
know  where  the  prisoner  was  at  the  time  of  that  sen- 
tence; nor  whether  any  citation  had  been  served. — 
Henry  Davis  being  called  up  a  second  time,  said  he  had 
held  his  present  situation  for  one  year  from  February, 
1834;  did  not  know  who  produced  the  book  on  a  former 
trial  in  1828 ;  was  not  in  office  when  the  sentence  was 
signed ;  knew  Mr.  Preston,  the  registrar ;  Mr.  Browne 
was  his  deputy,  and  had  the  care  of  all  the  official 
papers,  and  witness  was  a  clerk  in  his  office. — Mr.  Hm'- 
pur  being  also  called  up  again,  proved  the  signature  of 
Mr.  Preston,  the  registrar,  to  be  his  handwriting ;  be- 
[*168]  lieved,  indeed  was  *  sure,  that  he  had  seen  him 
write ;  but  besides,  he  had  been  in  correspondence  with 
him,  and  had  received  from  him  letters  in  answer  to 
letters  written  by  witness  to  him ;  witness  had  been  for 
twelve  years  incumbent. — Arthur  Moore  Moss,  Esq., 
proved  that  he  had  seen  the  prisoner  officiate  as  curate 
in  the  protestant  church  of  the  parish ;  never  saw  him 
marry  any  one. — Catherine  Donnelly,  a  dress-maker, 
proved  that  she  knew  Mr.  Gray;  she  was  unmarried; 
he  proposed  marriage,  and  she  agreed;  they  went  to- 
gether for  the  purpose  of  being  married,  accompanied 
by  Mr.  Hutchins.  The  prisoner  performed  the  cere- 
mony according  to  the  forms  of  the  protestant  church. 
Mr.  Gray  v^as  a  protestant;  witness  was  a  Roman 
Catholic;  after  that  ceremony  they  cohabited  as  man 
and  wife ;  they  did  not  now ;  Mr.  Gray  had  left  her ; 


1835.] 


REX  V.  SANDYS. 


les 


she  had  known  him  for  three  or  four  years ;  witness  was 
about  twenty  years  of  age,  not  quite  twenty;  Mr.  Gray's 
father  was  a  magistrate;  the  marriage  took  place  at 
Clonena;  witness  never  saw  Sandys  before  or  si  rice; 
witness  attended  the  trial  under  a  summons. — Thomas 
Hutchins  proved  that  he  was  a  policeman ;  was  acquaint- 
ed with  Gray ;  at  his  request  he  went  with  him  and  last 
witness,  and  was  present  at  the  marriage;  eight  shillings 
were  paid,  and  twelve  more  promised  to  be  paid  next 
day ;  the  ceremony  was  performed  on  the  4th  of  October, 
1834,  about  two  o'clock,  according  to  the  protestant 
form;  witness  never  saw  Sandys  before  or  since,  except 
when  he  was  going  into  the  Old  Gaol ;  he  identified 
him ;  the  ceremony  lasted  about  three  quarters  o^  an 
hour.     Here  the  evidence  for  the  prosecution  closed. 

The  prisoner  called  Mr.  Thomas  Mosse,  who  said  he 
knew  the  prisoner  in  1813,  when  he  was  looked  upon 
as  *  highly  respectable;  he  had,  however,  been  [*169] 
tried  for,  and  convicted  of,  offences  similar  to  the  present. 


-    in 

1 

i 

1 

f 

^        ^ 
[■ 

t>i 

i 

i^ 

i 

1 

11*:  I 

iW"! 

ifil'  ■ 

I 
1 


3'' 


I  !Ji 


,ii;i 


.1! 


The  Jury  found  the  prisoner  guilty,  and  judgment  of 
death  was  recorded ;  but  he  was  recommended  by  the 
learned  Baron  to  eighteen  months'  imprisonment. 


Before  the  verdict,  Daly,  as  counsel  for  the  prisoner, 
objected  to  the  legality  and  sufficiency  of  the  evidence 
for  the  prosecution. 


•i:-' 


i    '. 


I 


"rj    **■! 


d 


if 


11 


I 


«  ■ 

I 


169  JEBB'S    RESERVED   CASES.  [Easter 

The  objection  was  thus  stated : 

Queoi'sCowiti/,  )  Be  it  remembered,  that  at  the  il/rt?"//Z>o- 
ifo  Wit.  }  rough  Lent  Assizes,  in  the  year  1835, 
held  before  the  Honorable  Sir  W.  C.  Smith,  bart.,  Rich- 
ard Sandi/s,  clerk,  was  arraigned  for  having,  on  tlic  4th 
of  October,  in  the  year  1831,  being  a  degraded  clergy- 
man of  tlie  church  of  Ireland,  celebrated  a  marriage 
between  one  Wallij  Gray,  and  one  Catherine  Donnelly, 
contrary  to  the  statute ;  to  which  charge  the  said  Richard 
Sandys  pleaded  not  guilty ;  on  which  a  Jury  being  im- 
pa,nnelled  to  try  the  said  issue,  counsel  learncci  in  the 
law  gave  in  evidence  on  the  part  of  the  crown,  to  main- 
tain and  prove  the  said  issue,  a  book  brought  from  the 
Consistorial  Court  at  Carlow,  and  purporting  to  contain 
therein  an  entry  signed  by  the  registrar  of  said  Court, 
and  which  recited  merely  that  said  Pichard  Sandys  was 
degraded  as  to  his  rank  of  clergyman ;  and  said  counsel 
learned  in  the  law  insisted  on  the  part  of  the  crown  that 
said  entry  contained  in  said  book  was  conclusive  evi- 
dence of  the  degradation  of  the  said  Sandys  from  his 
rank  of  clergyman  of  said  church  of  Ireland;  but  io 
[*170]  reply  to  this,  counsel  learned  in  the  law  *  of  tiu'; 
said  Richard  Sandys  did  then  and  there  insist  before 
the  said  Honorable  Sir  W.  C.  Smith,  bart.,  that  said 
evidence  was  not  suiFicient  to  convict  the  said  Sandys, 
inasmucii  as  there  was  no  evidence  clear  and  satisfac- 
tory that  said  book  of  said  Consistorial  Cojiirt  was  pub- 
licly kept,  and  also  inasmuch  as  (if  said  evidence  were 


INi 

of 

Held,  1 
tonat 

tI)C 

offti 

The 
of  mcB 
Us. 


lit. 


1835.] 


BOARDS   OF  HEALTH,    MAYO. 


170 


conclusive  of  said  sentence  of  degradation,)  there  ought 
to  have  been  regularly  given  in  evidence  on  tlie  trial  of 
said  issue,  the  proceedings  on  which  said  sentence  of 
degradation  was  founded  (1  Phil.  Evid.  373;  Peake  on 
Evid.  74;),  analogous  to  the  practice  relative  to  decrees 
of  the  High  Court  of  Chancery ;  whereas  the  truth  and 
fact  is,  that  no  such  evidence  was  produced  by  the 
counsel  learned  in  the  law  on  the  part  of  the  crown, 
though  insisted  on  by  the  counsel  on  the  part  of  said 
Sandys. 

At  the  meeting  of  the  Twelve  Judges,  the  book  of 
the  Consistorial  Court  was  produced,  and  it  appeared 
that  the  previous  proceedings  were  entered  therein. 
The  Twelve  Judges  were  of  opinion  that  the  convic- 
tion was  right  (a). 

(a)  Vide  Rex  v.  Slonage,  ante,  12L 


IN  the  M-xUer  of  a  PRESENTxMENT  for  Repayment  [*171] 
of  advances  to  BOARDk«  OF  HEALTH,  County  MAYO. 

Held,  tliat  a  presentment  for  llic  repayment  of  money  advanced  by  the  Lord  Lieu- 
tenant  out  of  the  consolidated  fund,  under  the  58  G.  3,  c.  47,  &.  2  W.  4,  c.  9,  to 
tlio  Hoards  of  Healtli  estahlisiied  in  different  districts  of  a  county,  should  be  raised 
off  the  county  at  laigc,  and  not  ofl"  the  respective  districts. 

The  Lord  Lieutenant  having  directed  that  several  sums 
of  money,  amounting  in  the  whole  to  the  sum  of  £6,636 
14s.  2c?.  should  be  advanced  out  of  the  consolidated  fund, 


- 


31' 

I 

;;ii' 


m 


;.f^ 


ii 


lili 


*H»I 


-ivi! 


171 


JEBB'S   RESERVED  CASES. 


[Easter 


if  T  ;  i    ; 
III ;  ■■{  ' 


li. 


flij'!   ' 


pursuant  to  the  provisions  of  the  58  G.  III.  c.  47,  and 
the  2  W.  IV.  c.  9,  to  the  respective  boards  of  health, 
•which  had  been  established  in  different  districts  of  the 
county  of  Mayo,  an  appUcation  was  made  at  the  Spring 
Assizes  for  Maijo,  in  1835,  to  the  grand  jury  of  that 
county,  to  present  the  sum  of  £6,636  14s.  2c?.  to  be 
levied  off  the  county  of  Maijo,  to  repay  the  sums  which 
had  been  so  advanced.  The  grand  jury  thought  that 
the  sums  wiiich  had  been  so  advanced  should  not  be 
levied  off  the  county  at  large,  but  off  the  respective 
districts  to  which  the  money  had  been  advanced,  and 
in  the  proportions  in  which  such  districts  had  respec- 
tively received  the  same. 

Vandekur,  J.,  (the  Judge  of  Assize)  accordingly  re- 
served for  the  consideration  of  the  Judges  the  question, 
whether  the  grand  jury  was  bound  to  present  the  said 
sum  of  £6,636  145.  2d.  to  be  levied  off  the  county  at 
large,  or  had  a  right  to  elect  whether  it  should  be  levied 
off  the  several  districts  to  which  it  had  been  advanced, 
and  in  the  proportions  in  which  they  had  respectively 
received  the  same.  A  similar  question  was  raised  by 
the  Grand  Jury  of  the  county  of  Roscommon,  and  re- 
served by  Burton,  J. 

[*172]  The  twelve  Judges  unanimously  decided, 
that  the  county  at  large  is  imperatively  subject  to  the 
charge  {a). 

(a)  The  6  &  7  W.  4,  c.  116,  s.  90,  now  regulates  tlie  repayment  of  advanccfi. 
It  uses  tlic  general  words,  timt  the  sums  advanced  "  Hhall  he  raised  off  such  county." 


(I  < 


mi 


" '  brj 
-2  ye 


u 


'anil 
roac 
mac 
cost 


1835.]         ROAD    PRESENTMENTS,   ROSCOMMON. 


172 


IN  the  Matter  of  PRESENTMENTS  for  advances  from 
Government  for  the  repair  of  ROADS  in  the  Co.  ROS- 
COMMON. 


Held,  that  the  6  G.  4,  c.  101,  s.  5,  and  the  1  &  2  W.  4,  c.  33,  s.  107,  as  to  present- 
mcnts  by  grand  juiics  of  sums  equal  to  tliosc  advanced  out  of  the  consolidated 
fund  for  the  repair  of  roads,  were  imperative  upon  the  grand  jury. 


At  the  Spring  Assizes  for  the  County  of  Roscommon, 
in  1835,  three  presentments  were  laid  before  the  Grand 
Jury,  one  of  which  was  as  follows,  the  two  others  being 
of  the  same  description :  "  We  present  the  sum  of  £  54 
**  175.  5d.  to  be  levied  off  the  County  at  large,  paid  to 
"  the  treasurer,  and  by  him  to  the  collector  of  Excise  in 
"  Athlone  District,  to  reimburse  his  Majesty's  treasury 
"like  sum  advanced  for  the  repairs,  &c.  of  certain  pub- 
"  lie  roads  in  this  County."  A  letter  in  the  following 
terms  was  at  the  same  time  laid  before  the  Grand  Jury : 
"Whereas  in  pursuance  of  the  provisions  of  an  Act 
"  passed  in  the  6th  year  of  the  reign  of  his  late  Majesty 
"  Geo.  IV.,  entitled,  '  An  Act  to  provide  for  repairing, 
"  *  maintaining,  and  keeping  in  repair  certain  roads  and 
"  'bridges  in  Ireland,'  and  of  an  Act  passed  in  the  1  & 
"  2  years  of  Wm.  IV.,  entitled,  *  An  Act  for  the  extension 
"  *  and  promotion  of  Public  Works  in  Ireland,'  several 
"  roads  situate  in  the  County  of  Roscommon  have  been 
"  made,  the  whole,  or  at  least  one-half  of  the  original 
"  cost  whereof  has  been  defrayed  at  the  public  expens3: 


n" 

ii'' 


J 


*173 


J  EBB'S   RESERVED   CASES. 


[EttHtcr 


"I,  Sir  William  Goss  't,  K.  C.  IL,  under  *scc-  [*173] 
*'  rctary  to  the  Lords  Justices,  and  g  -iicral  govern- 
"ors  of  Ireland,  do  licrcby  ccrify  1o  t'le  fe  retary  of 
"  the  Grand  Jury  of  the  said  County  of  Roscommon, 
"that  the  sum  of  £5i  lis.  5il,  advanced  out  of  the 
*'  consolidated  fund,  has  been  expended  upon  the  repairs 
*'  of  the  said  roads  so  situate  and  lying  in  and  within  the 
"Countv  of  Roscom?no)i,  of  which  sum  of  £54  175.  5d. 
"the  said  Giand  Jury  are  by  the  said  Act  required  to 
"make  presentment.     Dublin  Castle,  Feb.  27,  1835. 

WM.  GOSSETT." 


1835. 


II  I'i 


.1 


The  Grand  Jury  objected  to  making  the  presentments, 
upon  the  grounds  that  the  roads  to  which  they  related 
were  not  in  their  opinions  put  in  good  and  sufficient 
repair,  and  that  the  account  of  the  manner  in  which  the 
money  had  been  expended  should  be  also  laid  before 
theni,  for  their  examination  and  investigation;  and  upon 
the  matter  being  brought  before  Burton,  J.,  (the  Judge 
of  Assize)  and  the  Grand  Jury  having  been  told  by 
him  that  the  law  was  imperative  upon  them  to  make 
the  presentments,  they  at  length  consented  to  make 
them,  on  the  assurance  of  the  Judge  that  the  question 
(whether  the  law  was  imperative  upon  the  Grand  Jury 
to  make  the  presentments,  or  whether  the  Grand  Jury 
had  a  right  to  exercise  their  judgment  upon  the  fact  of 
the  roads  being  put  into  good  and  sufficient  repair,  and 
the  money  properly  expended  or  not,  and  thereupon  to 
make  or  reject  the  presentments)  should  be  submitted 


T       fT 


[ill 


1835.]    INSPECTORS  OF  WEIGHTS  AND  MEASURES.      173 

to  the  consideration  of  the  Twelve  Judges.  The  fiating 
of  the  presentments  was  accordingly  reserved  for  such 
consideration.  The  statutes  referred  to  in  tliis  case 
were  the  6  Geo.  IV.  c.  101,  ss.  2,  3,  4,  5,  7,  and  8;  and 
the  1  &  2  Wm.  IV.  c.  33,  ss.  83,  107,  and  111. 

*The  Twelve  Judges  were  unanimously  of  [*174] 
opinion  that  the  law  was  imperative  upon  the  Grand 
Jury  to  make  the  presentments,  upon  the  proper  certi- 
ficates being  laid  before  them  (a). 


(a)  The  1  &  2  W.  4,  c.  33,  s.  107,  revived  the  6  G.  4,  c.  101,  ss.  4  &.  5  of  which 
regulated  the  adviinccs  by  govcrnnieiit,  and  the  repayment  by  presentments.  Tiie 
6  &  7  W.  4,  0.  116,  8.  6],  (referring  to  the  1  &,  2  W.  4,  c.  33,)  now  regulates  the 
advances  by  government,  and  s.  (i"',,  the  repayment.  The  ditfercnee  between  the 
wording  of  the  latter  enactment,  (6  <fc  7  W.  4,  e.  llfi,  s.  C2,)  and  that  of  the  other 
two  Acts,  (6  G.  4,  c.  101,  8.  5,  and  1  &  2  VV.  4,  c.  33,  s.  83,)  consists  chiefly  in  the 
C  G.  4,  and  1  &  2  VV.  4,  using  the  words  "authorized  and  required"  to  present; 
and  the  6  &  7  W.  4,  tlie  words,  "  shall  make  prescutment." 


HI 


IN  the  Matter  of  the   Appointment   of  INSPECTORS  OF 
WEIGHTS  AND  MEASURES. 


Held,  that  the  6th  and  7th  sectioi-P  of  the  4  &  5  W.  4,  c.  49  (Weights  and  Mca- 

sures),  were  imperative. 


At  the  Spring  Assizes  at  Naas,  in  1835,  the  Grand 
Jury  applied  to  Smith,  B.,  for  permission  to  omit  acting 
28 


i-  ■ 


\:  ' 


■ii*' 


,'  'In 


:      ■   * 


174 


JEBB'S   RESERVED   CASES. 


[Easter 


1-1 ; 


^':ii: 


:| 


[|:  , 


;>??. 


upon  the  6th  section  of  the  4  &  5  \Vm.  IV.  c.  49  («), 
as  to  appointing  an  inspector  of  weights  and  measures, 
&c.  They  made  this  application  on  the  ground  of  a 
supposed  intention  in  the  legislature  of  speedily  altering 
the  law;  and  of  their  wish  therefore  to  save  the  County 
an  expense  in  the  interim.  Some  of  the  body  had  re- 
ceived information  of  this  intended  change  from  one  of 
their  county  members,  whose  letter  they  submitted  to 
the  learned  Baron,  who,  however,  thought  and  told 
them,  that  no  prospect  of  a  change  in  the  law  could 
justify  an  omission  to  act  upon  the  injunctions  of  the 
[*175]  statute  law,  as  it  then  -stood.  *They  then 
inquired  of  his  lordship  whether  he  considered  the  sixth 
section  as  peremptorily  imperative ;  and  he  told  them  he 
thought  it  was.  They  finally  agreed  to  make  the  pre- 
sentment appointing  an  inspector,  requesting  the  learned 
Baron  to  respite  it  for  the  opinion  of  the  Judges,  as  to 
whether  the  sixth  section  was  imperative,  and  left 
nothing  to  their  discretion.  As  no  inconvenience  could 
result  to  the  County  from  this,  he  consented  to  do  so. 

On  the  same  principle,  having  made  the  inquiry  pre- 
scribed by  the  seventh  section,  and  learned  that  a  com- 
plete set  of  copies  of  the  imperial  standard  weights  and 
measures  required  by  that  section  had  not  been  pro- 
vided, the  learned  Baron  made  the  order  upon  the  Trea- 


(a)  Repealed  by  the  5  &  6  W.  4,  c.  63,  which,  however,  contaiiiB  similar  pro- 
visions  in  ss.  19  &,  20.    The  latter  Act  is  referred  to  by  6  &  7  W.  4,  c.  116,  s.  116. 


At 


to 

ther 
Thci 
17tl 


1835.] 


SURVEYOR'S    SALARY,    KING'S   CO. 


175 


surer  which  that  section  directed,  but  suspended  the 
effect  of  such  order  until  the  opinion  of  the  Judges  upon 
this  part  of  the  case  also  should  be  had. 


'l'  '  i 


The  Twelve  Judges  were  unanimously  of  opinion 
that  the  two  sections  in  question  were  imperative. 


IN  the  Matter  of  a  Presentment  by  the  Grand  Jury  of  [*176] 
the  KING'S  COUNTY  for  the  Salary  of  the  COUNTY 
SURVEYOR. 


Held,  tliat  where  a  County  Surveyor  had  been  appointed  only  two  months  before 
the  Assizes,  the  Grand  Jury  were  not  bound  to  present  for  a  full  moiety  of  his 
salary,  or  a  full  moiety  of  the  expenses  of  his  office  and  clerk,  under  ss.  39  &  41 
of  the  3  &.  4  W.  4,  c.  78.  Held,  also,  that  even  if  the  moiety  ought  to  have  been 
presented  by  a  former  Grand  Jury,  a  subsequent  Grand  Jury  could  not  rectify 
the  mistake. 


At  the  Spring  Assizes  for  the  King's  County,  in  1835, 
a  presentment  was  offered  to  Bushe,  C.  J.,  under  the  fol- 
lowing circumstances. 


r  ! 


'  1' 


>\A 


Mr.  Richard  B.  Grantham  was  appointed  surveyor 
to  the  King's  County  by  warrant  from  Lord  Welksley, 
then  Lord  Lieutenant  of  Ireland,  dated  May  16th,  1834. 
The  Assizes  for  the  King's  County  commenced  on  the 
17th  of   July  following,   and  tho    Grand  Jury  then 


17(5 


JEBD'9    RESERVED   CASES. 


[Eaxtcr 


assembled  presented  £41  135.  id.  to  the  Surveyor  as 
his  salary  for  two  months  at  the  rate  of  £250  per  an- 
num, pursuant  to  the  3  &  4  W.  IV.  c.  78,  s.  39  (a), 
which  commenced  in  operation  in  May  1834.  The 
Grand  Jury  at  the  Spring  Assizes  presented  a  further 
sum  of  £8  0.<f.  8^/.  to  the  same  surveyor  for  the  expense 
of  an  ofhcc  and  sahiry  of  a  clerk  for  two  months  at  £50 
per  annum,  pursuant  to  s.  41  of  the  same  Act. 


W  ■■' 


Mr.  Grantham  conceiving  himself  entitled  to  the  half 
of  the  yearly  sum  of  £  250,  inasmuch  as  it  was  required 
by  s.  39  of  the  3  &  4  W.  IV.  c.  78,  that  the  Grand  Jury 
should  fix  the  amount  of  the  Surveyor's  salary,  and 
present  a  moiety  of  that  salary,  and  that  payment  of 
the  same  should  be  made  accordingly;  and  also  conceiv- 
[*177]  ing  himself  *  entitled  to  half  the  sum  of  £50, 
pursuant  to  s.  41,  which  stated  that  the  Grand  Jury 
was  authorized  and  required  to  present  a  sum  of  £  50 
to  defray  the  expenses  of  an  office  and  salary  of  the 
clerk,  a  moiety  of  which  the  Grand  Jury  was  authorized 
and  required  to  present  at  each  Assizes;  applied  to 
Bushe,  C.  J.,  on  the  first  day  of  the  Spring  Assizes  for 
the  Ki?ig's  County,  in  1S35,  stating  that  in  ignorance  of 
what  he  had  since  been  advised  he  was  legally  entitled 
to,  he  submitted  at  the  last  Assizes  to  the  presentments 
then  made ;  but  at  the  present  Assizes  had  applied  for 
presentments  for  the  sums  in  which  the  former  were 

(a)  The  provisions  of  this  section,  and  of  tlie  41st,  afterwards  mentioned,  huve 
been  rc-cnactcd  verbatim  by  the  G  &.  7  W.  4,  c.  116,  ss.  41  &.  43. 


the 
sent 


"the 
"the 


fl-f  ;. 


1835.] 


SURVEYOR'S  SALARY,   KING'S  CO. 


177 


deficient,  to  the  Grand  Jury,  who  required  the  opinion 
of  the  learned  Cliief 'Justice  upon  the  subject.  Upon 
which,  having  sent  for  the  Grand  Jury,  and  considered 
the  statute,  he  told  them  that  it  appeared  to  him  that 
the  former  Grand  Jury  ought  to  have  presented  full 
half  years'  salaries  to  the  Surveyor,  and  for  his  office 
and  clerk;  but  that  he  had  doubts  whether  the  mistake 
(if  it  were  one)  could  be  rectified  by  the  present  Grand 
Jury,  and  whether  the  matter,  being  of  a  fiscal  nature, 
could  be  discussed  after  the  opening  of  the  commission 
under  the  29th  section  of  this  statute.  The  Grand  Jury 
upon  this,  at  the  recommendation  of  his  lordship,  passed 
two  presentments,  which  were  respited  until  the  opinion 
of  the  Judges  should  be  obtained  upon  the  following 
questions: — 1st,  Whether  the  construction  contended 
for  by  the  Surveyor  was  right;  and  2dly,  If  so,  whether 
it  was  competent  to  the  Court  and  Grand  Jury  to  rectify 
the  mistake  in  the  manner  before  mentioned.  The  pre- 
sentments were  as  follows : 

"  We  present  the  sum  of  £  83  6s.  9(1  to  be  raised  off 
"  the  county  at  large,  and  paid  to  Richard  B.  Grantham 
*•  *  Esq.,  county  surveyor,  to  reimburse  him  the  [*178] 
"  balance  of  the  moiety  of  his  salary  omitted  to  be  pre- 
"  sented  at  last  Assi/os  (3  &  4  Wm.  IV.  c.  78,  s.  39)."— 
"  We  present  the  sum  of  £16  135.  Ad.  to  be  raised  off" 
"  the  county  at  large,  and  paid  to  Richard  B.  Grantham 
*'  Esq.,  to  reimburse  him  the  balance  of  the  moiety  of 
"  the  expense  of  an  office  and  salary  for  his  clerk  omit- 


' '  ( 


W 


1 

i  1 

i 

1  '! 

1  ■ 

i.'i» 

178 


JKnn-S   RESERVED  CASES. 


[Fobrunry  3 


"  ted  to  1)0  presented  last  Assizes  (3  &  4  Wm.  IV.  c.  78, 

"8.4)." 

All  the  Judges  being  present  except  Torrens,  J.,  six 
of  them  (DoiiERTY,  C.  J.  C.  Pleas,  Joy,  C.  B.,  Johnson, 
J.,  Vandei-eur,  J.,  Foster,  B.,  and  Crampton,  J.,) 
were  of  opinion  that  the  presentments  were  bad  on  both 
grounds,  viz.  first,  because  the  Grand  Jury  had  a  power 
to  present  less  tlian  a  moiety;  and  secondly,  because 
even  supposing  the  G nnd  Jury  to  have  been  bound  to 
present  a  full  moiety,  still  a  subsequent  Grand  Jury 
could  not  rectify  the  mistake  of  a  former.  The  other 
five  Judges  rested  their  opinion  on  the  second  ground 
alone,  upon  which  all  the  Judges  were  unanimous. 


[*179]        THE  KING  r.  PATRICK  TIERNEY. 


An  indictment  for  perjury,  stating  that  tlic  traverser  "did  maliciously  depose  and 
swear,"  &.C.,  and  concluding,  that  so  the  said  traverser  "fuUcly,  maliciously,  and 
wickedly,  in  manner  and  form  aforesaid"  did  commit  perjury,  is  bad. 


The  traverser  was  tried  at  a  commission  of  Oyer  and 
Terminer  for  Dublin,  in  1836,  before,  Moore,  J.,  and 
Johnson,  J.,  upon  an  indictment  for  perjury  alleged  to 
have  been  committed  in  an  affidavit  sworn  by  him  in  a 
cause  in  the  King's  Bench.    There  were  two  counts  in 


:'"I' 


To  this  indictment  counsel  for  the  traverser  objected 
on  the  following  grounds ;  that  the  oflFence  as  charged 
in  the  indictment  was  not  perjury ;  that  the  statement 
that  he  did  "maliciously  depose  and  swear"  was  insuf- 
ficient to  sustain  it :  and  that  the  conclusion  of  law  at 
the  end  of  each  count  was  immaterial  and  did  not  aid 
it.  Counsel  referred  to  Rex  v.  Cox,  1  Leach  71 ;  the 
note  to  Rex  v.  Davis,  1  Leach  494 ;  Rex  v.  Stevens,  5 
B.  &  C.  246  (11  E.  C.  L.  216);  and  2  Chit.  C.  L.  312. 

Eleven  Judges  [Torrens,  J.,  being  absent)  unani- 
mously held  that  the  indictment  was  bad,  and  that  the 
judgment  ought  to  be  arrested. 


T 


»  1 


1830.1 


REX   v.  TIERNEY. 


179 


the  indictment,  and  in  each  count,  after  the  usual  state- 
ments and  inducement,  it  was  alleged,  "that  the  said 
**  Patrick  Ticrncy  being  sworn  as  albresaid,  not  having 
"  the  fear  of  God,  &c.,  did  then  and  tliero,  &c.,  mali- 
"  ciously  dcpo.se  and  swear  amongst  other  things,  &c.," 
(here  followed  the  aflidavit  upon  which  the  assignments 
of  perjury  were  founded;  and  after  these  assignments 
each  count  concluded):  "And  so  tlie  jurors  aforesaid 
"  upon  their  oath  aforesaid  do  say  and  present  that  the 
"  said  i*a/ncA;  Tierneij,  on,  &c.,  at,  &-c.,  falsely,  mali- 
"  ciously,  and  wickedly,  in  manner  and  form  aforesaid, 
"did  commit  wilful  and  corrupt  perjury." 


11 


See  ante,  The  King  v.  I'rendergatt,  G4. 


180 


JFBB'S  RESERVED  CASES. 


[February  3 


*  IN  the   Matter  of  a  PRESENTMENT   for  compensation 
for  a  MALICIOUS  INJURY  in  tlie  County  of  CARLOW. 


sm  'M 


Held,  by  six  Judges  against  five,  that  s,  70  of  the  3  &  4  W,  4,  c,  78,  repealed  all 
former  laws  on  the  subject  of  malicious  injuries  to  pro|)erty,  and  that  therefore 
the  maliciou!)  burning  of  a  pew  in  a  Roman  Catliolic  chapil,  while  the  country 
was  in  a  state  of  disturbance  merely  arising  from  an  election,  was  a  proper  sub- 
ject for  compensation,  though  not  an  injury  under  the  Wbiteboy  Act :  and  that 
the  notices  and  examinations  required  by  the  former  laws  were  no  longer 
necessary. 


At  the  Carlow  Summer  Assizes  in  1835,  Patrick  Neil 
lodged  a  petition,  which  had  been  approved  of  at  spe- 
cial Sessions  (as  appeared  by  endorsement  thereon),  for 
compensation  for  an  injury  done  to  him  by  destroying 
his  Pew  in  the  Roman  Catholic  Chapel  of  his  parish. 
It  was  opposed  in  the  first  instance  by  a  cess-payer 
under  the  72d  section  of  the  3  &  4  Wm.  IV.  c.  78.     On 

* 

the  part  of  the  petitioner  it  was  proved,  that  in  January 
1835,  the  County  of  Carlow  was  in  a  state  of  great  dis- 
turbance and  nsubordination  on  account  of  the  election 
of  members  of  Parliament,  and  that  many  men  had  suf- 
fered .severely  in  their  persons  and  properties  for  having 
voted  against  the  popular  candidates :  so  much  so,  that 
it  had  become  necessary  to  establish  nightly  patrols  for 
protection ;  but  the  witness  who  proved  these  facts  ad- 
mitted, upon  cross-examination,  that  there  was  not  in 
the  county  any  other  kind  of  disturbance  except  what 
grew  out  of  the  election.    He  said  that  the  election 


m 


lat 
for 
ad- 
in 
^hat 
tion 


1836.] 


CARLOVV   PRESENTMENT. 


180 


be«ran  on  the  13th  and  ended  on  the  17th  of  January, 
and  that  the  petitioner,  who  was  his  father's  tenant,  had 
voted  for  Messrs.  Kaoanagh  and  Briien,  the  unpopular 
candidrtes.  The  petitioner  swore  he  had  built  a  large 
pew  in  the  chapel  at  his  own  expense,  which  had  cost 
him  £10;  and  that  the  timber-work  was  in  some  in- 
stances made  of  boards  three  inches  thick,  which  could 
only  have  been  separated  with  a  hatchet,  and  that  it 
required  21  men  to  carry  it  into  the  chapel;  that  on  the 
Sunday  before  the  16th  of  January  he  and  his  family  sat 
in  *it;  on  the  evening  of  Thursday,  the  15th,  he  [*1S1] 
saw  it  in  full  preservation,  but  on  the  following  morning 
at  9  o'clock  he  found  the  ruins  of  it  strewed  about  the 
fields  and  n  ads  in  many  fragments,  and  part  of  it  was 
tied  up  in  a  tree  near  his  house  in  the  shape  of  a  triangle 
or  gallows;  and  that  he  did  not  know  who  committed 
the  offence.  Being  cross-examined  as  to  what  had 
became  of  the  boards,  he  said  that  the  school-master 
and  his  scholars  had  taken  'hem  away,  and  burned  them 
in  the  scliool-room.  The  cess-payer  who  opposed  the 
petition  then  examined  two  witnesses  to  prove  that  the 
petitioner  had  overvalued  the  pew,  which  could  be  res- 
tored for  a  very  trifling  expense;  the  last  of  those 
witnesses  swore  that  all  pews  in  the  chapel  belonged 
to  the  parish,  and  were  subject  to  be  regulated  by  the 
priest. 

Upon  this  Bushe,  C.  J.,  (the  Judge  of  Assize)  sent 
the  case  to  the  Grand  Jury,  who  presented  the  sum  of 
29 


A.: 

( 

t 


m^' 


:   J 


-1 ' , 

' 

;   5 

.T«'l» 


J! 


i.'l 


181 


JEBB'S    RESERVED   CASES. 


[February  3 


£9  l:s.  Gd.  to  the  petitioner;  and  his  lordship  respited 
the  presentment  for  the  opinion  of  the  Judges  upon  two 
objections  made  by  the  cess-payer's  counsel:  1st,  That 
the  disturbance  in  the  county  was  not  such  as  warranted 
a  presentment  for  the  injury;  2d,  That  the  petitioner 
had  not  such  a  property  in  the  pew  as  entitled  him  to 
compensation. 

Eleven  Judges  having  met  {ahsenie  Torrens,  J.)  six 
of  them  (Joy,  C.  B.,  Doherty,  C.  J.  C.  Pleas,  Penne- 
FATHER,  B.,  Johnson,  J.,  Crampton,  J.,  and  Foster, 
B.)  were  of  opinion  that  the  presentment  was  legal; 
holding  that  the  3  &  4  Wm.  IV.  c.  78,  s.  70,  had 
repealed  all  former  laws  on  the  subject  of  malicious 
injuries  to  property,  and  that  therefore  the  injury  in 
[*182]  tliis  case,  though  not  of  a  *Whiteboy  class,  was 
a  proper  subject  for  compensation  by  presentment :  and 
they  (with  the  exception  oi  Johnson,  J.)  held  that  it  was 
no  longer  necessary  to  give  the  notices  and  make  the 
examinations  required  by  the  former  laws.  The  mino- 
rity (consisting  of  Busiie,  C.  J.,  Smith,  B.,  Burton,  J., 
MooRE,  J.,  and  Perrin,  J.,)  were  of  opinion  that  the 
old  laws  were  not  repealed,  and  that  the  injury  not 
being  of  the  Whiteboy  class  was  not  the  subject  of  pre- 
sentment. They  also  (with  the  exception  of  Perrin,  J.) 
held,  that  the  notices,  &c.,  under  the  former  Acts,  were 
still  necessary  («). 


(a)  Sec  tI:C  note  to  tlic  case  of  llio  Gnlwiy  liiirninir  Petition,  ante,  p.  72.    Siiico 
that  note  was  printed,  a  bill  lias  been  brouglit  into  Purliunient  (session  l&'ll,)  to 


1836.]    FEES  ON   BURNING  PETITIONS,  ARMAGH.        182 

extend  tlic  provisions  of  the  G  &  7  VV.  4,  c.  116,  to  tlio  county  and  county  of  city 
o{ Dublin.  Tliiit  Act,  as  the  law  at  present  stands,  regulates  (by  s.  I'iH,)  tlic  giv- 
ing  of  notices  to  the  high-constable  and  churchwardens,  &c.,  in  all  other  counties 
but  that  of  Dublin;  tiic  omission  of  wliicli  regulations  in  the  3  &.  4  W.  4,  c.  78, 
8.  70,  gave  rise  to  the  question  in  the  case  in  the  text. 


1. 


.  I 


-ere 


IN  the  Matter  of  Presentments  for  OFFICERS'   FEES  on 
BURNING  PETITIONS,  Co.  Armagh. 


Held,  that  the  4  G.  4,  c.  43,  s.  1,  did  not  preclude  clerks  of  the  crown  or  judges' 
criers  from  taking  fees  on  burning  petitions;  and  that  these  fees  might  be  included 
in  the  presentments,  as  part  of  the  damages  sustained  by  the  petitioners. 


At  the  Armagh  Summer  Assizes  in  1835,  several  peti- 
tions for  burning  and  other  injuries  came  before  Johnson, 
J.,  and  the  Grand  Jury  in  the  usual  way  for  compensa- 
tion ;  and  the  Grand  Jury  stated  that  the  petitioners  had 
required. them  to  insert  as  part  of  the  damage  sustained 
the  costs  incurred  by  them  in  presenting  and  forwarding 
their  petitions;  that  the  Grand  Jury  had  added  these 
sums,  but  wished  to  call  the  Judge's  attention  to  the 
fact  before  he  fiated  them,  in  order  to  ascertain  how  far 
these  fees  were  legal.  The  fees  were  as  follows;  45.  lid. 
charged  on  each  *  petition  by  the  clerk  of  the  [*183] 
crown,  and  5^.  for  the  crier.  The  Grand  Jury  also 
stated  that  they  considered  that  under  the  4  G.  IV.  c. 
43,  s.  1,  the  salary  presented  to  the  clerks  of  the  crown 
and  criers  precluded  them  from  taking  any  fees  legally. 


'i:;* 


I  Mi 


183  JEBB'S   RESERVED   CASES.  [Februarys 

The  crier  insisted  that  his  fees  were  immemorially 
received  on  such  petitions,  and  the  clerk  of  the  crown 
relied  on  the  49  G.  III.  c.  101,  as  giving  him  the  right 
to  this  fee ;  and  both  insisted  that  these  were  not  fees 
coming  within  the  meaning  of  the  4  Geo.  IV.  c.  43, 
inasmuch  as  they  were  not  prior  thereto  sums  for  which 
any  presentment  could  be  made  as  fees  by  the  Grand 
Jury ;  and  that  if  the  salary  was  intended  by  that  Act 
to  be  in  full  of  all  fees  of  every  description,  the  4th  sec- 
tion would  be  contradictory  to  the  1st,  as  thereby  the 
public  officers  are  required  to  make  affidavit  each  half 
year  of  the  fees  by  them  received. 


tj 


f! 


S' 


t 


The  learned  Judge  fiated  the  presentments,  reserving 
the  question  put  by  the  Grand  Jury  for  the  opinion  of 


unani- 


the  Judges. 


Eleven  Judges  {Torrens,  J.,  being  absent) 
mously  ruled  that  the  presentments  should  be  fiated  (a). 

(a)  In  1824,  tlie  Judffcs  had  decided  as  to  tlie  legality  of  this  particular  fee,  in 
the  case  of  Criers,  as  tiiey  inahidcd  it  iii  tiie  sciicdulo  of  fees  which  Criers  might 
legally  claim.  See  the  case  of  Criers^  Fees,  tinle,  33,  and  the  schedule,  ante,  35, 
note.  The  decisions  upon  the  4  G.  4,  c.  43,  are  recognized  as  apidicahle  to  the 
present  state  of  the  law,  under  tlic  6  &  7  W.  4,  e.  116.  Vide  ante,  33,  note;  and 
the  cases  of  the  Fermanagh  and  Clare  Road  Traverses,  post. 


1836.] 


DESERTED  CHILDREN. 


184* 


*IN  the  Matter  of  JUDGES'  ORDERS  for  the  support  of 
DESERTED  CHILDREN. 


■V  ■'  1 


,in 
ight 
35, 
tlic 
and 


Held,  that  under  tlic  11  &  12  G.  3,  c.  15,  and  13  &,  14  G.  3,  c.  S24,  tlicrc  could  be 
only  one  order  for  a  sum  not  cxccc  Jivg  £5  for  each  deserted  eliild. 


The  two  following  cases,  involving  the  same  question, 
were  considered  and  decided  together. 

At  the  Summer  Assizes  for  the  County  of  Armagh, 
in  1835,  a  list  of  forty-three  deserted  children,  with 
their  respective  ages,  and  the  names  and  residences  of 
the  several  persons  in  whose  care  they  had  been  placed, 
was  laid  before  Johnson,  J.  A  memorial  signed  by  the 
Rev.  Ogle  Disney,  tiie  curate  of  the  parish  of  Armagh, 
and  by  William  Christian  and  George  Barnes,  church- 
wardens, in  the  following  t'^rms,  was  presented  to  the 
learned  Judge.  "To  the  honorable  William  Johnson, 
•Judge  of  Assize.  The  undersigned,  the  curate  and 
"  church-wardens  of  the  parish  of  Armagh,  beg  to  re- 
"  present  to  your  lordship  that  in  consequence  of  the 
"determhied  opposition  to  the  payment  of  parochial 
"  assessments  which  has  been  manifested  in  this  parish, 
"  it  has  been  found  impossible  to  collect  the  sums  legally 
"  assessed  by  the  parishioners  at  the  last  Easter  vestry. 
"  They  are  prepared  to  prove  to  your  lordship  that  acts 
"  of  violence  and  intimidation  have  been  so  successfully 


i^;li 


i  .'.<  :■ 


1  ':! 


.1  1 1 


184 


JEBB'S  RESERVED  CASES, 


[February  3 


resorted  to  in  the  parish,  that  they  cannot  find  any 
person  who  will  undertake  the  collecdon  of  those  as- 
sessments, though  a  high  per  centage  has  been  offered 
as  an  inducement.  Under  these  circumstances  they 
pray  your  lordship  to  order  an  assessment  to  be  levied 
upon  the  parish  of  Armagh,  for  the  support  of  forty- 
three  children  who  have  been  deserted  by  their  pa- 
rents, or  left  orphans  by  their  death.  24th  July,  1835. 
"  Edward  Ogle  Disney,  Curate. 

"  William  Christian, 
"  George  Barnes, 


Church-  Wardens. ^^ 


[*185]  The  Rev.  Ogle  Disney  and  William  Chris- 
tian were  sworn,  and  deposed  to  the  truth  of  the  memo- 
rial and  of  the  list  of  deserted  children  laid  before  the 
Judge.  Mr.  Disney  also  stated  that  a  sum  of  £300  had 
been  assessed  at  the  preceding  Easter  by  the  parish  in 
vestry  for  the  support  of  deserted  children,  and  that 
since  that  it  had  been  found  impossible  to  collect  it; 
and  Mr.  Christian  stated  that  he  had  used  every  exer- 
tion to  collect  the  assessment,  but  found  it  impossible 
to  do  so  in  consequence  of  the  excitement  in  the  parish. 


If 

\ 

1 

w 

1 

On  considering  the  case,  the  learned  Judge  made  an- 
order  that  the  sum  of  £  198  19^.  M.  should  be  levied  off 
the  parish  pursuant  to  the  13  &  14  Geo.  III.  c.  24,  and 
that  the  same  should  be  inserted  in  the  levy  warrant. 
But  as  applications  to  the  court  for  the  support  of  de- 
serted children  had  of  late  been  very  much  increased, 


Ju( 


ma 


1B36.] 


DESERTED   CHILDREN. 


18S 


apparently  on  account  of  the  change  that  had  taken 
place  with  respect  to  the  Foundling  Hospital,  the 
learned  Judge  thought  that  it  would  be  desirable  for 
the  Twelve  Judges  to  look  into  the  several  statutes  on 
this  subject  (viz.  the  11  &  12  G.  III.  c.  15;  13  &  14  G. 
III.  c.  24;  3  G.  IV.  c.  35,  ss.  2  &  3;  6  G.  IV.  c.  102;  9 
G.  IV.  c.  87),  and  to  come  to  a  determination  under  what 
circumstances  and  to  what  extent  they  were  warranted, 
as  the  statutes  then  stood,  to  make  orders  to  levy  the 
same  for  the  support  of  deserted  children  in  those  pa- 
rishes against  which  such  orders  were  sought. 


At  the  Summer  Assizes  in  1835,  several  applications 
were  made  to  Burton,  J.,  in  the  Counties  of  Leitrim, 
Roscommon,  Sligo,  and  Galway,  by  the  ministers  of 
different  *  parishes,  for  orders  to  raise  money  [*1S6] 
for  the  maintenance  and  education  ot  deserted  children 
in  those  parishes,  on  the  refusal  of  the  parish  vestries  to 
make  rates  or  parish  cesses  for  them.  In  all  these  cases 
one  sura  of  £5  had  been  raised  by  a  former  order,  and 
in  several  of  them  more  than  one  order  had  been  made, 
and  the  amount  rrlsed  under  a  conception  that  the 
statutes  upon  the  subject  (11  &  12  G.  III.  c.  15;  and 
13  &  14  G.  III.  c.  24)  authorized  the  raising  an  annual 
sum  of  £  5  for  this  purpose.  It  appeared  to  the  learned 
Judge,  however,  that  these  statutes  only  authorized  the 
making  one  such  order,  and  he  therefore  reserved  the 


'1 

•I  ''I 


'^1'^ 


f 


18G 


JEBB'S   RESERVED    CASES. 


[February  3 


question  for  the  consideration  of  the  Judges,  in  order 
that  a  uniform  course  might  be  taken  for  tlie  future. 


The  learned  Judge  suggested  that  if  the  Acts  in  ques- 
tion authorized  the  raising  of  only  one  sum  of  £'5,  the 
provision  must  have  been  grounded  on  the  presumption 
that  the  deserted  child  could  be  sent  and  admitted  into 
the  Foundling  Hospital  in  Dublin;  and  as  to  this,  the 
1  G.  IV.  c.  29,  authorized  the  governors  with  the  appro- 
bation of  the  Lord  Lieutenant  to  suspend  or  refuse  the 
admission  of  any  description  of  infants  for  any  time, 
with  or  without  any  condition  wha'^dver.  The  3  G. 
IV.  c.  35,  s.  1,  recited  the  11  &  12  G.  III.  and  the  13 
&  14  G.  III.,  and  that  notwithstanding  the  provisions 
made  by  these  Acts  (viz.  the  allowance  of  a  sum  not  ex- 
ceeding £5  for  each  child)  such  children  were  brought 
to  the  Foundling  Hospital  in  Dublin,  and  received  therein 
from  all  parts  of  Ireland;  and  enacted,  that  no  child 
should  in  future  be  admitted  unless  the  sum  of  £5 
should  at  or  before  the  offering  such  child  for  admit- 
tance be  paid  to  the  Registrar  of  the  Hospital,  for  the 
use  of  the  Hospital;  and  that  no  child  should  be  received 
[*187]  who  was  not  certified  *to  be  under  the  age 
of  twelve  months  by  the  minister  or  curate  and  cliurch- 
wardens;  and  the  provisions  of  the  11  &  12  and  13  &l 
14  G.  III.  were  thereby  extended  to  parishes  within  the 
city  of  Dicblin.  The  6  G.  IV.  c.  102  (an  Act  to  amend 
the  laws  respecting  deserted  children  in  Ireland),  reciting 
the  provision  of  £  5  leviable  on  parishes  for  the  support 


1836.1 


DESERTED   CHILDREN. 


187 


of  each  deserted  child  found  therein,  and  that  the  sum 
of  £5  was  then  required  to  be  paid  previous  to  the  re- 
ception of  any  deserted  child  into  the  General  Found- 
ling Hospital  in  Dublin,  and  that  no  fund  then  existed 
to  pay  the  expenses  eitlier  of  maintaining  such  deserted 
children  in  the  parish  where  tliey  were  found,  or  of 
transmitting  them  to  Dublin,  enacted,  that  it  should  be 
lawful  for  the  several  parishes  in  Ireland  to  raise  and 
levy  such  additional  sum  as  might  be  necessary  for 
maintaining  such  deserted  children  until  admitted  into 
the  Foundling  Hospital,  and  for  transmitting  them 
thither;  with  a  proviso  that  no  greater  sum  tlian  fifty 
shillings  should  be  raised  in  any  one  year  for  the  main- 
tenance or  transmission.  The  Act  to  be  in  force  for 
two  years  from  its  enactment.  The  9  G.  IV.  c.  87, 
continued  the  last  mentioned  Act  until  the  25th  of 
March  1829,  and  until  the  end  of  the  then  next  session; 
but  it  was  not  continued  by  any  subsequent  Act. 


Ml 


III 


Imrch- 

13  & 

lin  the 

imend 

3citing 

lupport 


Eleven  Judges  having  met  {ahsente  Torrens,  J.),  nine 
of  them  {Bushe,  C.  J.,  and  Foster,  B.,  dissentientihus) 
were  of  opinion  that  there  could  be  only  one  order  for  a 
sum  not  exceeding  £5  for  each  child,  and  not  an  annual 
order  for  each;  and  that  the  default  of  the  vestry 
amounted  to  neglect  by  the  parish.  Busiie,  C.  J.,  and 
Foster,  B.,  agreed  in  thinking  that  the  orders  might 
30 


•188 


JEBB'S   RESERVED  CASEH. 


[I'ebruary  4 


be  annual,  as  *long  as  it  was  required  by  the  minister 
or  curate  upon  oath  {a). 


(«)  The  provisions  of  tlic  11  &.  12  O.  3,  c.  \r>,  and  tlic  13  &,  11  G.  3,  c.  24,  arc 
still  ill  t'orvv  in  Ihihlin,  to  wliirli  they  were  cxtLiHlcd  by  tliu  3  (i.  I,  c.  ^Ti,  In 
otIiLT  coiintic'H,  the  cnni:  of  dcHcrlcd  children  Ih  provided  (or  by  the  C  &,  7  W.  4,  c. 
IIG,  8.  10!):  the  intention  ofwliicli  enuctinent  would  Nccin  to  be  to  allow  more  than 
one  ordt.,  tor  tlio  child,  when  lell  expoHcd,  must  be  under  the  u^re  oi' two  ycarx,  but 
no  8um  i8  to  bo  prcxented  for  itn  supjiort  after  it  Ikih  attuiiied  tttrhr  ycnrM.  Tho  7 
VV.  4,  c.  2,  8  7,  extends  tliu  luut-nientioncd  euactincnl  to  eauett  which  hud  occurred 
pruvioutily. 


IN  lite  Matter  of  a  JUDGE'S  ORDER  for  the  repayment  of 
advances  out  of  the  Consolidated  Fund  for  the  support  of 
tlie  CARLOW  District  LUNATIC  ASYLUM. 


The  Judg'c  may  malcc  an  order  for  the  repayment  of  advances  out  of  the  consoli- 
dated  fund,  under  tlir  G  G.  4,  c.  54,  s.  2,  although  the  Assizes  next  aflcr  the  order 
of  council  had  been  passed  by. 


li 
II' 


Before  the  Summer  Assizes  for  Carlorv  in  1834,  a  sum 
of  £89  10s.  Id.  was  advanced  by  the  consolidated  fund 
for  the  maintenance  of  ten  patients  from  .ne  City  of 
Kilkenmj  in  the  District  Asylum  at  Carlorv,  for  the 
period  comprized  between  the  20th  of  January  and  the 
3d  of  June,  1834,  at  the  rate  of  £8  9.9.  Old.,  being  the 
same  rate  as  was  charged  for  patients  from  the  Counties 
of  Kilkenny,  Wexford,  Kildare,  and  Carloiv.  The  usual 
order  of  the  Lord  Lieutenant  and  Council  was  laid 


183G.] 


LUNATIC    ASYLUM,   CARLOVV. 


188 


before  the  Grand  Jury ;  but  they  refused  to  present,  on 
tlic  grounds  of  its  being  an  excessive  demand,  and 
having  been  previously  rejected  by  the  cess-payers  and 
justices  at  the  Special  Sessions. 


ondoU* 
I  order 


At  the  Spring  Assizes  i  ^835,  a  sum  of  £105  Is. 
2icl.  was  advanced  from  the  consolidated  fund  for  the 
maintenance  *of  nine  patients  from  the  same  [*189] 
city,  at  the  same  rate,  for  the  period  from  the  3d  of 
June  1834,  to  the  10th  of  January  1835.  The  usual 
order  of  the  Lord  Lieutenant  and  council  was  laid 
before  the  Grand  Jury,  but  they  refused  to  present 
for  the  repayment  of  this  advance  for  the  same  reasons 
as  before  assigned. 


By  the  6  G.  IV.  c.  54,  (amending  the  1  &  2  G.  IV. 
c.  33)  it  was  enacted  (s.  1)  that  after  any  asylum  shall 
be  fit  for  the  reception  of  lunatic  poor,  the  Lord  Lieu- 
tenant may  order  and  direct  any  sum  not  exceeding 
£  10,000  per  quarter,  to  be  issued  out  of  the  consolidated 
fund  for  the  support  of  such  establishment;  and  by  s.  2, 
"  That  it  shall  be  lawful  for  the  Grand  Jury  of  any  and 
"  every  County,  County  of  a  City,  or  County  of  a  Town 
"  in  Ireland,  in  or  for  which,  either  wholly  or  in  part, 
"  any  such  Asylum  had  been  or  shall  be  erected,  and 
"  such  Grand  Jury  are  hereby  required,  at  the  Assizes 
"  next  after  the  date  of  any  sucli  order  for  the  advance 
"  of  money  for  the  opening,  carrying  on,  or  maintaining 
"any  such  asylum,  or  as  soon  after  as  they  shall  he 


w 


Iff 


•,    I 


fHT 


m 


JRBirS    RESERVED  CASES. 


[Fcbrunry  4 


**  thereto  required,  and  from  time  to  time,  whoncvcr  the 
"case  shall  happen,  to  make  a  presentment  for  the 
"  raising  off  any  sucii  County,  County  of  u  City,  or 
"  Comity  of  a  town,  such  sum  or  sums  of  money  as  shall 
"  bo  necessary  for  the  repayment  of  any  such  sum  or 
"  suras  so  advanced,  or  any  part  thereof,  at  such  times 
"  and  in  such  proportions  as  shall  be  directed  and  ascer- 
"  tained  by  any  order  or  orders  to  be  made  by  the  Lord 
"  Lieutenant  or  other  chief  governor  or  governors  of 
«*  Ireland  in  council  as  aforesaid ;  and  if  any  such  Grand 
•'Jury  shall  neglect  or  refuse  to  make  any  such  pre- 
"  sentment,  the  court  shall  order  the  sum  or  sums  which 
*'  ought  to  be  so  presented  to  be  raised,  as  if  the  same 
•'  [*190]  had  been  so  *  presented,  and  the  same  shall 
"  be  raised  and  paid  accordingly." 

At  the  Summer  Assizes  in  1835,  the  Crown-Solicitor 
havint;  brought  the  matter  under  the  consideration  of 
Joy,  C.  B.,  h:..  lordship  ordered  that  the  question  as  to 
the  power  of  the  Judge  of  Assize  to  make  orders  under 
this  enactment  for  payment  of  arrears  due  upon  ad- 
vances out  of  the  consolidated  fund,  should  be  submitted 
to  the  twelve  Judges. 


Nine  Judges  {Doherty,  C.  J.  C.  Pleas,  Moore,  J.,  and 
Torrens,  J.,  being  absent),  decided  unanimously  that 
the  Judge  of  Assize  M'as  at  liberty  to  make  the  order 
required  by  the  statute  for  payment  of  the  arrears, 
although  the  Assizes  next  after  the  date  of  the  Lord 


(< 
li 

(I 


1 1    < 


If; 


1836.1 


CO.    WICKLOW    PRESENTMENT. 


100 


Lieutenant's  order  for  the  advance  had  been  passed 
by;  and  that  the  Judge  ought  to  make  such  order  for 
repayment  upon  the  proper  documents  being  laid  before 
him  (rt). 


(a)  Tho  6  &  7  W.  4,  c.  IIC,  n.  93,  now  provided  for  tlio  rcpnymont,  by  prcRcnt' 
mcnt,  of  udvanccH  from  tho  coiixulidutud  fund;  iind  iuHtciid  of  tlio  wordii  used  in 
tho  C  G.  4,  c.  .54,  B.  2,  it  umcsi  the  oxpruHHiun  "at  each  aHHizoH."  Rut  it  docs  nut 
provide  for  the  cuhc  of  tho  Grand  Jury  rcfiixinfr  to  present,  and  therefore  perhaps  tho 
provisionH  in  the  G  G.  4,  c.  HA,  r.  2,  on  tu  tlio  Judge's  order,  are  vtill  in  force. — Tho 
9l8t  and  !)3d  sections  of  the  G  and  7  W.  4,  c.  IIG,  refer  to  tho  Ada  mentioned  in 
tho  case  in  tho  text  (1  &,  2  G.  4,  and  tlio  ainunding  Act,  6  G.  4,  c.  54,)  as  regulating 
tlio  Lord  LieulenaiU't  ordcrH  for  advances. 


•.     ( 


IN  the  Matter  of  a  PRESENTMENT  for  advances  to  [*191] 
CONTRACTORS  in  the  County  WICKLOW. 


A  presentment  in  the  form  of  a  general  authority  to  the  treasurer  to  make  advances 
to  contractors  in  every  case  where  the  sum  should  exceed  £21),  held  not  to  bo 
warranted  by  the  3  &,  4  W.  4,  c.  78,  s.  49,  (6  &  7  W.  4,  c.  IIG,  s.  128.) 


J.,  and 
|sly  that 
lie  order 
arrears, 
le  Lord 


The  following  resolution  was  agreed  to  by  the  Grand 
Jury  of  the  County  of  Wickiorv,  subject  to  the  approval 
of  the  Judge  of  Assize.  "  We  hereby  authorize  the  trea- 
"  surer  in  any  case  where  the  sum  should  exceed  twenty 
"  pounds  presented  at  this  Assizes,  to  advance  to  con- 
*'  tractors  from  any  money  in  his  hands  applicable  to 
"  such  purpose,  one  half  of  the  cost  of  the  said  work, 
"  provided  it  shall  be  certified  by  the  surveyor  that  more 


191 


JEBB'S    RESERVED  CASES. 


[May  25 


"than  half  of  the  cost  of  said  work  has  been  expended, 
"  conformably  to  the  contract,  and  that  due  notice  has 
"  been  lodged  with  the  secretary  of  the  Grand  Jury, 
"  within  the  limited  term  for  lodging  applicp.tions  of  the 
"  intention  of  such  contractor  to  apply  for  such  advance, 
"  and  that  such  advance  shall  be  approved  at  Special 


"  Sessions." 


This  resolution  was  founded  on  the  49th  section  of 
the  3  &  4  Wm.  IV.  c.  78,  and  much  discussion  had 
taken  place  on  the  subject  of  it.  Some  members  of  the 
Grand  Jury  contended  that  no  general  resolution  of  the 
nature  proposed  could  be  passed,  and  that  the  section  in 
question  did  not  authorize  it;  other  members  argued  that 
such  general  authority  was  necessary,  as  otherwise  the 
section  would  be  a  nullity ;  and  they  particularly  referred 
to  the  three  separate  conditions  set  forth  in  the  section 
as  necessary  to  be  performed  before  any  contractor  could 
get  the  moiety  of  the  cost  of  the  work  contracted  for  by 
him;  one  of  those  conditions  being  the  approval  of  the 
justices  at  Special  Sessions  subsequently  to  be  holden ; 
[*i92]  which  would  guard  the  general  *  authority 
given  to  the  treasurer  in  the  first  instance  by  the  Grand 
Jury,  from  any  abuse  (a). 

Doherty,  C.  J.  C.  Pleas  (the  Judge  of  Assize),  respited 
the  presentment  until  he  should  have  an  opportunity  of 


(fl)  This  condition  is  omitted  in  the  C  &  7  W.  4,  c.  IIC,  s.  328. 


183G.] 


ROAD  TRAVERSE,  CO.  KILKENNY. 


198 


ascertaining  whether,  in  the  opinion  of  the  Judges,  such 
a  presentment  ought  to  be  fiated. 


Eleven  Judges  {Pennefathcr,  B.,  being  absent)  de- 
cided unanimously  against  the  presentment. 


&i 


IN  the  Mittcr  of  TRAVERSES  to  Presentments  for  ROADS 
in  tiic  Co.  KILKENNY. 


Held,  that  the  notice  of  traverses  directed  to  bn  given  by  the  3  &  4W.  4,  e,  78,  s.5.5, 
prKvious  to  the  commencement  of  the  Asshes,  siiould  be  given  previous  to  tlio 
Bwciirinfr  of  the  grand  jury  for  fiscal  busii.ess.  Such  traverses,  wiien  entered 
too  late  at  one  Astiizcs,  cannot  be  tried  at  tiic  next. 


At  the  Spring  Assizes  for  the  County  of  Kilhenny,  in 
1836,  the  following  or'Jer  was  made  by  Johnsoti,  J.,  on 
several  road  traverses  for  damages  which  had  been 
entered  at  the  Summer  Assizes  in  1935: — "  Respite  the 
"  trial  of  these  traverses  for  the  opinion  of  the  Judges 
"upon  the  point,  whether  the  n(>iice  to  the  secretary  of 
"  the  Grand  Jury  was  .sufficient,  the  Grand  Jury  for  fiscal 
**  business  having  been  sworn  on  the  22d  of  July  last, 
*'  the  notice  served  on  ^\^c.  Ibll-owing  day  (the  23d),  and 
"the  commission  opened  on  the  2ilh,  the  next  day." 

Several  road  traverses  for  damages  having  been  en- 
tered in  the  crown  book  for  trial,  the  learned  Judge  was 


'  t| 


•193 


JEBB'S   RESERVED  CASES. 


[May  25 


applied  *to  in  court  to  strike  out  such  traverses,  ou 
the  ground  that  notice  had  not  been  given  pursuant 
to  the  55th  section  of  the  Grand  Jury  Act  then  in  ope- 
ration (3  &  4  Wm.  IV.  c.  78)  to  the  secretary  of  the 
Grand  Jury,  previous  to  the  commencement  of  such 
Assizes,  stating  the  amount  of  damage  intended  to  be 
claimed.  The  impression  of  the  learned  Judge  at  the 
time  was,  that  "  previous  to  the  Assizes"  should  be  con- 
strued to  be  "previous  to  the  Grand  Jury  being  sworn" 
on  the  discharge  of  their  fiscal  duties;  because  it  might 
happen  that  if  the  Grand  Jury,  at  the  time  of  entering 
into  the  consideration  of  such  presentment,  were  ap- 
prized of  the  number  of  traverses  to  be  taken  and  the 
amount  of  the  sums  sought  to  be  recovered,  they  might 
not  have  considered  it  advantageous  to  the  County  to 
pass  such  presentment;  whereas  if  they  were  not  aware 
fflf  any  such  intention  to  traverse,  or  the  amount  of  the 
damage  sought  to  be  obtained,  they  might  pass  a  pre- 
sentment which  they  would  not  otherwise  have  done. 
The  learned  Judge  therefore  respited  the  trial  of  these 
traverses  until  the  opinion  of  the  Judges  should  be  taken 
upon  the  following  points:  first,  whether  the  words 
"  previous  to  the  commencement  of  the  Assizes"  as  used 
in  the  Grand  Jury  Act,  meant  "  previous  to  the  day  on 
"  wMch  the  Grand  Jury  are  sworn  on  the  discharge  of 
"tlieir  fiscal  duties;"  and  secondly,  if  such  were  the 
meaning,  whether  the  entered  traverses  could  be  tried 
at  the  next  Assizes  before  a  petit  jury  to  ascertain  the 
amount  of  the  damajres ! 


18S6]         DROGHEDA   PRESENTMENT,   GAOLERS. 


193 


Eleven  Judges  {Pennefather,  B.,  being  absent)  hav- 
ing met,  NINE  of  tliem  were  of  opinion  that  both  ques- 
tions should  be  answered  in  the  negative.  Torrens,  J., 
*  and  Cramptox,  J.,  held  that  the  traverses  [*194] 
might  be  tried  («). 


(o)  Tlin  1 ;'  tth  section  of  the  G  &  7  W.  1,  c.  1 1 G,  contains  the  same  words  as  those 
in  tile  3  \  i  W.  4,  c.  7S,  s.  !>.'>,  rcspcntinfr  notice  to  bo  given  to  tlic  secretary  of 
the  (Traiul  jin  .  "  previous  to  the  cnmniimccnicnt  of  tlie  Assi/cs,"  and  therefore  tliis 
decision  is  iiiiiilicable  to  (he  present  liiw.  VVitii  respect  to  tiic  otlior  point,  the  sec- 
tion in  question  of  the  3  &.  4  W.  4,  e.  78,  and  the  133d  section  of  the  G  &.  7  VV.  4, 
e.  IIG,  botii  jirovide  that  presentments  shall  be  traversed  only  at  the  Assizes  at 
wliicli  tiie  presentments  are  made.  Tiie  construction,  tlierefore,  to  be  put  upon  the 
word  "traversed,"  in  conformity  witii  tiiis  decision,  nmst  include  not  only  tlic 
entry,  but  the  trial,  of  the  traverse.  Sec  tiie  case  of  the  Co.  Down  Presentment, 
unle,  20. 


IN  the  Matter  of  PRESENTMENTS  for  Officers  of  the  GAOL 

•  DROGHEDA. 


ill 


f2e  of 
re  the 
tried 
in  the 


Where  the  magistrates  and  cess-payers  at  a  Special  Sessions  under  the  3  &.  4  W.  4, 
c.  78,  had  reduced  the  jjaoler's  salary  fram  its  former  amount:  Held,  that  the 
grand  jury  at  the  Assizes  tbilowiiin-  hmi  power  under  the  7  G.  4,  c.  74,  s.  64, 
(iiotwith>tiinding  the  3  iSL  W.  4,  c.  7d,  s.  ill,)  to  present  for  the  Ml  amount  of  the 
ibrmer  salary. 


On  the  18th  of  Februarv,  l^Hfi.  prrrious  to  the  Droghe- 
da  Assizes,  Bi/sht,  C.  J.,  receir«d  the  following  letter 
from  Major  ^^(mdward,  inspector-general  of  prisons. 
31 


194 


JEBB'S   RESERVED  CASES. 


[May  25 


"  My  Lord, 

"  I  think  it  my  duty  to  submit  to  your  lordship  that 
'  the  salaries  of  the  officers  in  the  prison  of  Drogheda 
'have  been  reduced  at  tlie  Special  Sessions  to  an 
'  amount  which,  as  inspector-general  of  prisons,  I  must 
'report  as  a  totally  inadequate  remuneration  for  the 
'  services  which  are  to  be  performed.  The  salary  of 
'the  governor  has  always  been  extremely  low,  viz. 
'  £  80  a  year,  late  Irish  currency.  It  appears  from  his 
'  report  to  mo  that  his  salary  is  reduced  to  £  50  a  year, 
'  that  sum  being  charged  with  the  payment  of  one  of 
'  the  turnkeys,  and  that  the  salaries  of  the  other  turn- 
'  keys,  which  were  so  unusually  low  as  £  20  a  year,  are 
'  reduced  to  £  10.  It  is  quite  unnecessary  for  me  to  occu- 
'  [*l!)r)]  py  your  lordship's  time  with  *  any  observations 
'upon  this  reduction;  if  such  reduction  can  be  made, 
'  all  improvement  in  prison  discipline  must  be  aban- 
'  doner! ;  tlie  salary  proposed  for  the  governor  being 
'  totally  inadequate  to  the  support  of  an  officer  qualified 
'  for  his  office,  while  that  proposed  for  the  turnkeys 
'  could  .scarcely  be  supposed  to  be  sufficient  to  procure 
'  the  services  ot  a  person  who  could  with  safety  be 
'  trusted  within  the  uaol.  I  did  hope  that  the  salaries 
' ot  our  officers  were  exempted  from  the  provisions  of 
'the  Grand  Jury  Act  by  the  62d  section  of  that  Act. 
'  I  have  the  honor  to  be,  &,c." 

On  the  23d  of  February,  at  the  Drogheda  Assizes,  the 
governor  of  the  gaol  handed  to  Bushe,  C.  J.,  the  follow- 
ing letter : 


1 


183G.1 


DROGHEDA  PRESENTMENT,  GAOLERS. 


195 


"To  the  Lords  Justices  of  Assize  for  the  North  East 
"  circuit  of  Ulster.  The  petition  of  Patrick  M'Kenna, 
"  governor  of  his  majesty's  Gaol  at  Drogheda,  sheweth, 
*'  that  the  cess-payers  at  the  last  Special  Sessions  held 
"  under  the  3  &  4  Wm.  IV.  c.  78,  and  contrary  to  the 
"  wishes  of  the  magistrates  thereat  assembled,  reduced 
"the  salary  of  petitioner  from  £73  \6s.  lid.  being  the 
"lowest  in  Ireland,  to  £50,  and  that  of  the  turnkeys 
"from  £20  to  £10  per  annum,  charging  petitioner's 
"  salary  with  the  payment  of  one  of  them.  That  on 
"  the  assembling  of  the  present  Grand  Jury,  petitioner 
"addressed  to  them  a  memorial,  complaining  of  the 
"gross  injustice  of  the  proceeding  and  praying  their 
"  interposition  in  this  behalf,  to  which  petitioner  would 
"  respectfully  refer  your  lordships;  that  the  Grand  Jury 
"  appeared  most  willing  to  administer  the  redress  sought, 
"  but  not  considering  themselves  warranted  by  the  law 
"  to  alter  the  acts  of  the  special  *  sessions  agree-  [*196] 
"  ably  to  petitioner's  prayer,  they  suspended  their  deci- 
"sion  upon  it,  referring  the  case  to  your  lordships' 
"di^,posal;  for  the  truth  whereof  petitioner  would  most 
"respectfully  refer  to  the  foreman.  May  it  therefore 
"  please  your  lordships  to  give  such  advice  and  direc- 
"  tion  in  the  premises  as  to  your  lordships'  wisdom  and 
"justice  shall  seem  meet. 

"PATRICK  M'KENNA." 


l:5 


i 

m 

•.'I 


■:.1i    - 


{ 


,1 


kes,  the 
(follow- 


In  the  address  of  the  learned  Chief  Justice  to  the 
Grand  Jury,  he  stated  to  them  the  substance  of  both 


r 


196 


JEBB'S    RESERVED   CASES. 


[May  25 


I 
i, 


letters,  and  directed  them  to  make  two  sets  of  present- 
ments, one  for  the  sums  which  they  tliought  proper 
salaries  for  the  governor  and  turnkeys  of  the  gaol,  and 
the  other  for  the  sums  which  had  heen  fixed  at  Sessions 
for  these  officers ;  and  for  tho  purpose  of  bringing  all 
the  facts  before  the  Judges,  his  lordship  enquired  from 
the  secretary  of  the  Grand  Jury  as  to  what  had  passed 
at  the  sessions,  and  found  that  the  sums  now  claimed 
by  the  officers  for  the  half  year  ending  with  the  Spring 
Assizes  for  1836,  were  those  which  had  been  heretofore 
presented,  and  that  the  magistrates  wished  to  continue 
them,  but  were  out  voted  by  the  rate-payers,  who  from 
the  small  extent  of  the  County,  and  the  burdens  lately 
imposed  on  it,  in  consequence  of  the  cholera  and  other 
charges,  considered  it  their  duty  to  be  as  economical  as 
possible.  The  particulars  of  the  proceedings  at  the 
Sessions  were  stated  as  follows  in  a  paper  handed  by 
the  secretary  of  the  Grand  Jury  to  Bushe,  C.  J.,  at  the 
close  of  the  Assizes, 

"  Lent  Assizes,  1836,  County  of  the  town  of  Drogheda. 
"  At  a  special  Sessions  held  preparatory  to  these  Assizes, 
"  the  governor  of  the  gaol  applied  to  the  magistrates 
"  and  cess-payers  for  his  salary,  as  required  by  the  3  & 
"  [*197]  4  W.  IV.  *c.  78,  s.  69,  and  the  decision  on  his 
"application  was  'approved;  half  yearly  salary  to  be 
"'£25.'  The  turnkey  also  applied,  and  the  decision 
"in  his  case  also  was  'approved;  half  yearly  salary  to 
" '  be  £5.'     The  salary  of  the  governor  theretofore  was 


< 

n 


of 
w 

C] 
th 
to 
sic 


un 
mc 

(« 

the 
pres 


1836.]        DROGHEDA   PRESENTMENT,   GAOLERS. 


19T 


ilieda. 


each  half  year  £36  I85.  6\d.,  and  that  of  the  turnkey 
£  10;  and  these  would  have  become  due  at  the  present 
Assizes.  The  Grand  Jury  have  made  the  following 
presentments  in  connection  with  this  case; — 'We 
'present  the  sum  of  £36  IS5.  bid.  to  be  raised  off  this 
'county,  and  paid  to  Patrick  M^Kemia,  governor  of 
'the  Gaol,  for  half  a  year's  salary,  ending  these  As- 
' sizes;'  and  a  presentment  for  £25  for  the  like  purp;>3e 
agreeably  to  the  decision  at  Sessions.  'We  present 
'the  sum  of  £  10,  to  be  raised  off  this  county,  and  paid 
'to  the  turnkeys  for  half  a  year's  salary,  ending  these 
'assizes;'  and  a  presentment  for  £5,  for  the  like  pur- 
pose, agreeably  to  the  decision  at  sessions." 


As  it  did  not  appear  that  the  62d  and  69th  sections 
of  the  3  &  4  W.  IV.  c.  78,  were  easily  reconcileable 
with  the  64th  sect,  of  the  7  G.  IV.  c.  74,  the  learned 
Chief  Justice  reserved  for  the  consideration  01  the  Judges 
the  question,  whether  the  Grand  Jury  were  at  liberty 
to  present  for  the  larger  sum,  notwithstanding  the  deci- 
sion at  the  special  Sessions. 

Eleven  Judges  {Pen7iefather,  B.,  being  absent) 
unanimously  decided  in  favour  of  the  larger  present- 
ment {a). 


■  I 


(o)  Tills  decision  will  apply  equally  well  to  the  present  state  of  the  law  under 
the  C  &.  7  W.  4,  c.  116 ;  s.  124  of  which  refers  to  the  7  G.  4,  c.  74,  as  regulating 
presentments  to  officers  of  gaols,  and  also  requires  application  to  the  Special  Sessions. 


•198 


JEDB'S   RESERVED  CASES. 


[Miiy  Sr. 


*TIIE  KING  V.  STEPHEN  ABBOTT  DWYEIl. 


■f  • 


An  indictment  for  Fcnding'  to  the  Lord  Licntcnant  a  fiilsc  rccornmcndalinn  oi  per. 
sons  convicted,  charged  tluit  tlic  prisoner  forged  liic  si^jnuturc  of  "  T.  Kiiin;, 
Jituctor  of  T."  Tlie  evidence  was,  that  tlic  name  forged  by  the  pr'sonor  was 
"T.  Knox,  Hector  of  T."  The  Jodgo  having  given  leave  to  ani':,id,  hy  snt).sti. 
tutitig  "Knnx"  for  "A'int'-;"  .Held  that  there  was  no  fatal  variance  on  tlic  ground 
of  its  appearing  in  evidence  that  T,  Knox  was  in  fact  Rector  of  A.,  and  that 
the.c  was  no  such  parish  as  that  of  T.  Ildil,  also,  that  proof  of  the  doeunient 
which  cotitained  the  false  recommendation  being  in  the  prisoner's  handwriting, 
and  dated  in  the  county  in  which  the  venue  was  laid,  was  sutKcient  evidence  of 
acts  done  in  that  county.  To  prove  a  conviction  which  took  place  at  a  former 
Assizes,  the  record  thereof,  and  not  the  crown  book,  is  the  best  evidence. 


The  prisoner  was  tried  before  Johnson,  J.,  at  the  Spring 
Assizes  for  the  County  of  Tipperary,  in  1836,  upon  an 
indictment  which  stated  that  John  Hanny  and  Patrick 
Connors  had  pleaded  guilty  at  Clonmel  Summer  Assizc«i 
in  1835  to  an  indictment  charging  them  with  the  man- 
slaughter  of  Patrick  Ryan,  for  which  they  were  sen- 
tenced to  transportation  for  seven  years;  that  on  the 
13th  of  August  in  the  same  year,  at  Clonmel,  a  certain 
memorial,  purporting  to  be  a  memorial  on  behalf  of  said 
John  Hanny  and  Patrick  Connors,  and  addressed  to  his 
Excellency  the  Lord  Lieutenant,  was  prepared  and 
written  to  be  sent  to  his  Excellency,  praying  a  commu- 
tation of  said  sentence;  that  afterwards,  at  the  same 
time  and  place,  Stephen  Drvyer,  late  of  Toomavara,  in 
said  county,  yeoman,  knowing  the  premises,  and  intend- 
ing corruptly,  &,c.  to  obstruct  justice,  and  to  deceive  the 


Wi 


man- 
re  sen- 
on  the 
certain 
of  said 

to  his 
ed  and 
ommu- 
e  same 
mra,  in 

intend- 

ive  the 


183C.] 


REX  I).  DWYER. 


198 


Lord  Lieutenant,  and  to  cause  him  to  beheve  that  the 
said  John  Ilanny  and  Patrick  Connors  were  deserving 
of  such  commutation,  and  that  same  was  recommended 
by  one  Thomas  King,  clerk,  rector  of  Toomaiiara  in  said 
county,  and  by  the  Rev.  John  Meagher,  Roman  Catholic 
priest  of  said  parish,  and  that  the  prosecutors  (naming 
them)  believed  said  persons  to  be  innocent,  did  forge 
and  counterfeit  at  foot  of  said  memorial  certain  recom- 
mendations, certificates,  and  declarations,  in  the  words 
following:  (here  the  recommendations  were  set  out;  the 
first  dated  the  13th  of  August,  1835,  at  Toomavara, 
*and  purporting  to  be  signed  by  Johi  Meagher,  [*199] 
P.  P.,  of  Toomavara,  and  by  Thomas  Knox,  rector  of 
Toomavara,  and  the  other  purporting  to  be  signed  by 
Ellen  Ryan,  Denis  Mack,  and  John  Shanahan,  and  pur- 
porting to  be  witnessed  by  John  Meagher,  P.  P.,  of 
Toomavara,  near  Nenagh:)  with  intent  that  said  forged 
certificates,  recommendations,  and  declarations,  should 
be  presented  to  the  Lord  Lieutenant  as  true  and  genu- 
ine, with  intent  to  procure  a  commutation'  of  said  pun- 
ishment ;  and  in  further  prosecution  of  said  intent  did 
cause  said  niemorial  with  the  said  certificates  and 
recommendations  forged  therein,  to  be  sent  to  the  said 
Lord  Lieutenant.  There  was  a  second  count  diflTering 
from  the  first  only  in  reciting  the  recommendations  of 
the  Rev.  John  Meagher,  and  the  Rev.  Thomas  Knox, 
alone ;  and  there  was  also  a  second  indictment,  differing 
from  the  first  by  leaving  out  the  fact  that  the  memorial 
was  sent  to  the  Lord  Lieutenant. 


■    *1 

. !   1 


I    ' 


IW 


JEnn'S  RESERVED  CASES. 


[Mny  25 


111  I 
i 


I 


The  conviction  of  John  Hanny  and  Patrick  Connors, 
as  set  out  in  the  indictments,  was  proved  by  James  Car- 
michacl,  deputy  clerk  of  tiie  crown,  who  produced  the 
record  thereof.  Tlie  memorial,  recommendations,  and 
the  respective  signatures,  were  distinctly  proved  to  be 
the  handwriting  of  the  prisoner,  and  the  admission  of 
the  prisoner  to  such  effect  was  also  proved.  The  seve- 
ral persons  whose  names  appeared  signed  to  the  recom- 
mendations were  produced,  and  respectively  ] Moved  that 
the  signatures  purporting  to  be  theirs'  were  not  written 
by  them.  This  was  the  evidence  on  the  part  of  the 
Crown. 


■  I 


The  indictments  having  in  the  reciting  parts  (as 
above  set  forth)  stated  the  naiue  of  one  of  the  persons 
recommending  the  commutation  of  sentence  to  be  Tho- 
[*200]  mas  King,  *  clerk,  rector  of  Toomavara,  and  in 
setting  out  the  recommendation,  stated  it  to  be  signed 
by  Thomas  Knox,  clerk,  rector  of  Toomavara;  the  coun- 
sel for  the  crown  during  the  progress  of  the  trial  applied 
to  the  learned  Judge  to  amend  the  indictment  by  striking 
out  the  name  King,  and  inserting  instead  thereof  the 
ji^vaQ  Knox.  The  learned  Judge  did  so  accordingly;' 
and  the  following  objections  were  taken  by  the  counsel 
for  the  prisoner : 


1st.  Tliat  by  the  said  indictments  he  was  charged 
with  having  forged  as  signature  to  a  certificate  annexed 
to  a  memorial,  the  name  of  '^Thomas  King,  rector  of 


i! 


lyas 


ors, 
Jar- 
.  the 
and 
to  be 
on  of 
scve- 
;com- 
ithat 
rittcii 
)f  the 


ts  (as 
arsons 
B  Tho- 
andin 
signed 
coun- 
pplied 
triking 
)of  the 
lingly ; ' 
tounsel 


Iharged 

inexed 

ictor  of 


183G.} 


HEX  V.  PWYKR. 


200 


Toomamra,^''  and  by  the  evidence  it  appeared  that  the 
name  signed  ^'y  the  certificate  was  ''Thomaa  Kno.r, 
rector  of  Tomnardra;'^  and  tliat  sn-h  ^^as  n  fatal  vari- 
ance. 2d:  That  on  the  -svcrds  Thomas  KIik/  l)eiijg 
amended  in  pursuance  of  tlie  statute  in  such  case  made 
and  provided  [a],  and  Thomas  Knox  substituted,  still 
the  addition  laid  in  the  indictment,  of  "rector  of  Tooma- 
vara,^^  was  a  fatal  variance,  said  'Vhomas  Knox  by  tliu 
evidence  appearing  to  be  rector  of  "Anfiamcadle,^'  and 
there  being  no  such  benefice  as  Toomavara,  and  that 
such  indictment,  if  right  at  all  in  setting  out  such  false 
addition,  should  have  set  it  out  as  "purporting  to  be" 
rector  of  Toomavara,  not  as  being  so  in  reality,  there 
being  no  such  parish.  3d :  That  the  record  of  the  con- 
viction of  Patrick  Connors  and  John  Ilannij  should  have 
been  set  out  in  the  indictments,  and  that  no  proof  what- 
ever was  given  or  offered  by  the  crown  of  the  identity 
of  such  persons,  or  of  their  being  in  existence  at  the 
date  of  the  memorial,  or  of  the  trial.  4th :  That  the 
venue  "  >  laid  in  the  County  of  Tipperanj,  and  no 
eviuv.  "•-'  given  by  the  Crown  of  any  act  done  by  tlie 
prisoner  in  said  *  County,  and  no  evidence  [*201] 
given  of  the  receipt  by  the  Lord  Lieutenant  of  the  said 
memorial,  or  of  its  ever  having  been  transmitted,  uttered, 
or  pul)lishcd  by  the  prisoner  or  any  other  person  in  the 
said  County  or  elsewhere.  5th :  That  the  only  evidence 
given  of  the  conviction  of  the  said  Patrick  Confiors  and 


(a)  y  G.  4,  c.  15. 


'* 


M 


II 


■cf\ 


32 


301 


JCDO'S  RERBRVP.D  CASES. 


[November  93 


John  Ilanny  was  Iho  record  thereof,  whereas  the  proper 
and  the  legal  evidence  in  the  case  would  have  been 
the  crown  book,  and  that  the  same  should  have  been 
proved. 

The  learned  Judge  left  the  case  to  the  Jury  on  the 
evidence,  and  they  convicted  the  prisoner ;  but  sentence 
was  respited  in  order  to  submit  the  several  objections 
to  the  Judges  for  their  opinions. 

Eleven  Judges  {Penne/ather,  B.,  being  absent)  unani- 
mously overruled  all  the  objections,  and  held  that  the 
conviction  was  right. 


[»202]  IN  the  Matter  of  a  PETITION  for  Compensation  for 
loss  sustained  by  HIGHWAY  ROBBERY. 


Held,  that  petitions  for  compensation   for  losses  sustained  by  highway  robbery 
were  not  within  tlie  3  &  4  W.  4,  c.  78,  s.  70. 


Jeremiah  Flynn,  on  the  13th  of  February,  1836,  was 
robbed  on  the  highway  of  £  172  85.  6d.,  the  property  of 
his  master,  William  Jackson.  The  latter  prosecuted 
the  robber  to  conviction,  and  preferred  a  petition  for 
compensation  under  the  3  and  4  Wm.  IV.  c.  78,  s.  70, 


hi 


1836.] 


ROnnERY   PETITION. 


Qoa 


which  enacted,  **  That  in  all  cases  of  maliciously  burn- 
•*  ing,  &c.,  or  of  the  robbery,  burning,  taking,  destroying, 
"  or  otherwise  injuring,  of  any  corn,  turf,  merchandize, 
"  store-boat,  barge,  vessel,  or  other  property,"  the  Grand 
Jury,  on  a  petition  being  presented  to  the  Judge  of 
Assize,  and  other  preliminaries  complied  with,  should 
present  compensation  for  the  damage  done.  The  Grand 
Jury  accordingly  made  the  following  presentment :  •'  We 
"  present  the  sum  of  £  172  8.?.  Tk/.  to  compensate  W. 
'■^Jackson  for  a  loss  sustained  by  highway  robbery, 
"  believing  that  we  are  constrained  so  to  do  by  the  70th 
"section  of  the  3  and  4  Wm.  IV.  c.  78;  but  we  should 
"have  rejected  it,  had  it  not  been  under  this  belief 
"  To  be  raised  on  the  county  at  large." 


s\, 


1  >, 


Foster,  B.,  (the  Judge  of  Assize,)  suspended  fiating 
this  presentment  until  the  opinion  of  the  Judges  should 
be  obtained  upon  the  question,  whether  the  case  of  loss 
by  highway  robbery  was  within  the  3  and  4  Wm.  IV. 
c.  78,  s.  70? 


Ly  robbery 

|36,  was 

perty  of 

Lecuted 

Ition  for 

Is,  s.  70, 


Ten  Judges  {Moore,  J.,  and  Perrin,  J.,  being  absent) 
*  were  unanimously  of  opinion  that  the  case  of  [*203] 
highway  robbery  was  not  within  the  statute,  and  that 
the  presentment  should  be  nilled  (o). 


(a)  This  case,  although  it  did  not  arise  upon  tlic  present  Grand  Jury  Act,  lias 
been  inserted  in  tiiis  collection,  because  it  appears  to  be  vrry  doubtful  wlirthcr,  and 
how  far,  some  of  the  provisions  of  the  3  &  4  W.  4,  c.  78,  (the  lale  Grnud  Jury 
Act,)  may  not  be  considered  as  still  in  force.    With  respect  to  the  section  in  ques- 


! 


203 


JEBB'S  RESERVED  CASES. 


[February  1 


lion,  (3  <fc  4  W.  4,  c.  78,  s.  70,)  the  corresponding  enactment  in  the  G  &  7  W,  4,  c. 
IIG,  s.  13.5,  omits  the  word  "robbery,"  and  the  words  "other  property;"  and  iilso 
omits  the  provisions  rcspcctin|f  liic  petition  to  tlic  Judge  of  Assize;  and,  tlicrcrorc, 
the  question  may  arise,  whctiier  a  pttitiim  to  the  Judfre  in  case  of  "  robbery  of 
other  properly,"  miylit  not  still  he  oU'ered.  The  3  tt  4  \V.  4,  c.  *S,  s.  70,  had 
been  held  to  repeal  ail  /brmer  laws  on  the  subject  of  malicious  injuries  to  property 
(Cnrlow  Preseiitimiit,  ante,  p.  180);  and  there  has  been  no  express  repeal  of  tlie  3 
&.  4  \V.  4,  e.  78.  The  implied  repeal  of  it,  on  the  ground  of  iiiMiisisteney  with 
the  6  Jt  7  W.  4,  c.  110,  would  seem  (as  far  as  the  present  question  is  concerned,) 
to  extend  only  to  tlie  case  of  presentments  authori/'d  bv  the  <brnier  Act;  the  fi  ifc  7 
W.  4,  enacting,  (s.  1,)  that  presentments  arc  to  be  made  under  no  other  Act  than 
the  latter.  It  may  be  observed,  that  the  section  in  tpiestion  (3  &,  4  W.  4,  c.  78,  s. 
70,)  is  mentioned  in  Oultou''s  Index  as  still  in  force.  (2d  Ed.  p.  4^0.) — (  Vide  ante, 
72,  note.) 


THE  KING  V.  JOHN  CASEY  and  SARAH  M'CUE. 


i 


I. 


Where  there  was  no  other  corroboration  of  the  testimony  of  an  accomplice  with 
respect  to  the  person  of  one  of  the  prisoners,  but  the  evidence  of  the  accomplice's 
wile,  who  herself  appeared  to  be  implicated  in  the  guilt  of  tlie  transaction:  Hthi, 
that  the  Judge  was  right  in  not  directing  an  acquittal,  but  in  leaving  the  case  to 
the  Jury  with  observations  upon  the  general  objections  to  the  credit  of  those 
witnesses;  and  that  a  conviction  under  these  circumstances  was  good. 


At  the  Commission  for  the  county  o(  Dublin,  in  January, 
1837,  John  C asejj  und  Sarah  M' Cue  were  tried  before 
Burton,  J.,  upon  one  indictment,  which  charged  John 
Casey  w'th  breakinjr  and  entering  the  dwelhng-house 
o''  Antlwiuj  Richard  Blake,  and  feloniously  taking  in 
the  bouse  a  quantity  of  silver  and  other  articles  (therein 
specified,)  the  goods  of  the  said  Anthony  Richard  Blake; 
[*204]  and  Sarah  *  M'Cue  with  feloniously  receiving 


lau] 


REX   V.   CASEY. 


tm 


several  of  the  said  stolen  articles,  she  well  knowinnr 
them  to  have  been  stolen. 


The  case  against  the  prisoners  was  proved  by  Henri/ 
Kinvan,  (an  accomplice,)  who  gave  a  very  detailed  and 
particular  account  of  the  manner  in  which  the  robbery 
was  effected,  the  s+ohn  silver  articles  sold  to  the  pri- 
soner Sarah  M '  Cue,  and  the  division  of  the  purchase 
money  made  in  her  presence,  and  with  her  participation 
and  fall  knowledge  of  the  robbery;  so  that  if  credit 
could  properly  be  given  to  his  evidence,  it  became 
impossible  to  entertain  any  doubt  whatever  of  the  guilt 
of  both  prisoners.  Many  of  the  particulars,  as  to  the 
manner  in  which  the  robbery  was  committed,  and  part 
of  the  stolen  goods  disposed  of,  were  also  confirmed  by 
other  evidence ;  but  those  circumstances  did  not  apply 
to  the  prisoners.  As  to  them,  the  following  evidence 
was  given.  Mart/  Kirwan,  wife  of  Henry  Kir?van,  (the 
accomplice,)  proved  the  sale  of  the  stolen  property  to 
Sarah  M^ Cue  by  tho  prisoner  Casey,  and  Henry  Ki7'- 
Tvan  lier  husband,  and  the  division  made  of  the  money. 
On  her  cross-examination  she  stated,  that  she  did  not 
know  of  her  husband's  intention  to  commit  the  robbery, 
but  she  had  no  doubt,  when  he  was  sent  for  and  went 
with  the  prisoner  Casey  to  meet  a  person  of  the  name 
of  Heslij),  that  he  was  going  upon  business  of  that 
nature;  ar.d  she  also  admitted  that  she  herself  received 
some  of  the  stolen  articles  from  her  husband  and  the 
prisoner  Casey,  and  pawned  them  at  the  different  ofHces 


i  1 


ao4 


JEBB'S    RESERVED   CASES. 


[February  1 


■    I 


I 

:    J: 


I 


where  they  were  found ;  and  those  articles  were  pro- 
duced and  identified.  Another  witness,  {Mary  Neil,  who 
with  her  husband  kept  a  baker's  shop  in  Fishamhle- 
street,)  was  also  examined;  and  she  proved,  that  very 
shortly  after  the  time  of  the  robbery,  Saroh  M'Cue 
came  to  her,  and  gave  her  several  silver  articles  (of  the 
[*205]  description  *  of  those  that  were  stolen)  to  take 
care  of  for  her,  and  amongst  them  a  silver  spoon,  and 
that  in  two  or  three  days  after  Sarah  M^Cue  called 
upon  her  again  in  a  great  hurry  to  get  them  back ;  that 
she  gave  them  back,  with  the  exception  of  one  (the 
silver  spoon),  which  was  identified  and  proved  to  be 
one  of  the  stolen  articles.  Upon  this  witness's  cross- 
examination,  she  admitted  that  she  was  well  acquainted 
with  Sarah  M'Cue,  who  often  brought  articles  to  her  to 
take  care  of  for  her,  and  that  she  believed  at  the  time 
she  received  the  articles  in  question,  that  they  were  not 
honestlj'^  come  by. 


On  the  case  for  the  prosecution  being  closed,  Mac- 
Donogh,  for  the  prisoners,  contended  that  the  Jury 
should  be  told  that  they  ought  to  acquit  the  prisoners. 
He  admitted  the  consistency  of  the  narrative  of  the 
accomplice  {Henry  Kirwan)  in  itself,  and  as  compared 
with  the  other  evidence  in  the  case,  so  far  as  respected 
the  commission  of  the  offence ;  and  that  it  might  and 
ought  to  be  considered  as  incontestably  proved  that  the 
robbery  was  committed  by  him  (the  accomplice),  and 
the  stolen  property  afterwards  disposed  of  by  him ;  and 


%\ 


Mac- 
Jury 
niers. 
kf  tlie 
[pared 
)ected 
It  and 
lat  the 
and 
and 


i8:n.] 


REX  r.  CASEY. 


305 


that  it  was  reasonably  to  be  inferred  from  the  whole  of 
the  evidence,  that  in  this  he  was  assisted  by  other  per- 
sons, and  that  there  were  receivers,  or  a  receiver,  of  the 
stolen  goods,  with  the  guilty  knowledge  of  their  having 
been  stolen;  but  that  there  was  no  evidence  that  could 
be  safely  relied  upon  that  the  prisoner  Casey  was  a  party 
to  the  commission  of  the  larceny,  or  that  the  prisoner 
Sarah  M^Cue  was  a  receiver  of  any  of  the  stolen  goods. 
He  laid  down  these  propositions — 1st,  That  the  evidence 
of  an  accomplice  is  not  to  be  acted  upon  (as  respects  the 
alleged  guilt  of  a  prisoner),  unless  that  evidence  has 
some  confirmation  or  corroboration  by  other  evidence. 
*  2d,  That  such  corroboration  or  confirmation,  [*206] 
in  order  to  warrant  the  acting  upon  it,  must  have  a 
specific  application  to  the  prisoner  on  trial.  3d,  That 
the  evidence  of  another  accomplice,  or  of  the  wife  of  an 
accomplice,  is  not  to  be  considered  or  acted  upon  as  any 
evidence  of  confirmation  or  corroboration.  4th,  That  in 
the  absence  of  any  such  (unobjectionable)  evidence  of 
confirmation  or  corroboration,  the  jury  should  be  told 
by  the  Judge  that  they  ought  to  acquit  the  prisoners. 
In  support  of  these  propositions  he  cited  the  following 
cases :  Rex  v.  Wells  {a) ;  Rex  v.  Neal[h) ;  Rex  v.  Addis  (c) ; 
Rex  V.  Wehh  {d) ;  Rex  v.  Moores  (e) ;  Rex  v.  Wilkes  (/); 
Rex  V.  Noakes  (g).  With  respect  to  the  case  of  Rex  v. 
Birkett  and  Brady  [h),  he  contended  that  it  did  not  ap- 


(«)  Mood.  &  M.  32fi.  (22  E.G.  L.  32 1.) 
(c)  6  C.  &  P.  .388.  (2.')  E.C.  L.  4.)2.) 
(e)  7  0.  &  P.  270.  (32  E.C.  L.  .'507.) 
{g)5C.&,  P.  326.  (21  E.C.  L.312.) 


(h)  7  C.  &,  P.  168.  (.32  E.C.  L.  481.) 
(</)  0  C.  &  P.  .W.'j.  (25  E.C.L.fl.lfi.) 
( /■)  7  (;.  &,  P.  272.  (32  E.C.  L.  507.) 
(h)  Rasa.  &,lly.  251. 


i    f 


1' 


20C 


JEBB'S    RESERVED   CASES. 


[February  1 


pear  to  have  been  reserved  or  considered  in  such,  a  man- 
ner as  to  make  it  a  binding  authority;  and  that  all  the 
cases  above  cited  were  subsequent  to  it.  He  then 
insisted  that  under  the  authorities,  the  evidence  of  Mary 
Kirwan  could  have  no  weight,  she  being  both  the  wife 
of  an  accomplice,  and  an  accomplice  her£.elf,  as  acces- 
sary after  the  fact.  That  there  was  no  other  evidence 
(of  corroboration)  applicable  to  the  prisoner  Casey,  and 
that  the  only  evidence  of  corroboration  applicable  to  the 
prisoner  Sarah  M '  Cue  was  that  of  Mary  Neil,  who  was 
herself  to  be  considered  as  an  accomplice  or  accessary 
after  the  fact;  and  on  this  point  he  referred  to  Rex\. 
Davis  (?'),  and  Rex  v.  Richardson  [k). 

Mazicre  Brady,  on  the  part  of  the  crown,  referred  to 
[*207]  *  2  Russell  on  Crimes,  55'.  id  the  cases  there 
cited;  and  to  the  Treatise  of  Joy,  C.  B.,  on  the  evidence 
of  accomplices,  and  the  cases  there  cited. 


The  learned  Judge  told  the  prisoners'  counsel  tliat  he 
could  not  take  the  case  from  the  jury,  and  that  he  should 
sum  up  the  evidence  to  them;  but  that  counsel  was  at 
liberty  to  address  the  jury  upon  the  case.  MacDonogh 
accordingly  spoke  to  the  case  at  considerable  length, 
and  in  the  course  of  his  address  he  referred  to,  and  read 
and  commented  upon,  the  cases  he  had  before  cited. 
No  witnesses  were  produced  for  the  prisoners. 


U)  GC.&.P.1?7.  (2JE.C.L.311.)    (k)  ()C.&-P.33G  i.'^.unl-'v  J.)  (25 E.G. L. 427.) 


^m 


1837.1 


UEX   V.   CASKY. 


!i07 


lc.L.427.) 


In  Slimming  up  the  case  to  the  jury,  the  learned 
Judge  read  the  whole  of  the  evidence  to  them,  com- 
menting upon  the  Ijearing  of  its  different  parts.  He 
told  them  that  the  demeanor  of  the  witnesses  Ilenrij  and 
Maru  K/'nvan,  and  Many  Neil,  the  consistency  of  the 
narrative  of  each  with  itself,  and  with  that  of  the  others, 
and  the  corrohoration  and  confirmation  it  received  as  to 
many  of  the  circumstances  collateral  to  the  alleged 
actual  guilt  of  the  prisoners,  appeared  to  give  the  case, 
as  deposed  to  by  them,  a  character  of  probability  that 
might  probably  create  a  strong  impression  upon  tlicir 
minds  of  the  truth  of  that  evidence  as  it  went  to  affect 
the  prisoners.  He  cautioned  them  against  yielding  im- 
plicitly to  that  impression,  observing  not  only  on  the 
general  objections  to  their  credit  as  being  accomplices 
in,  or  accessaries  to,  the  offences  which  tliey  deposed  to, 
but  also  on  the  inference  (which  appeared  to  the  learned 
Judge  to  be  fairly  deducible  from  their  evidence)  that 
their  general  habits  were  those  of  being  concerned  in 
such  depredations  as  were  the  subject  of  the  indictment. 
He  told  them  also  distinctly,  that  they  ought  not  to  find 
a  verdict  against  *  the  prisoners  if  they  enter-  [*20S] 
tained  a  reasonable  doubt  of  their  guilt,  and  that  it  was 
not  enough  that  they  should  feel  a  persuasion  in  their 
own  minds  of  that  guilt,  but  that  they  mast  be  satisfied 
that  it  was  proved  to  them,  and  that  by  witnesses  who 
deserved  credit  for  the  truth  of  the  evidence  given  by 
them,  as  that  evidence  went  to  affect  the  prisoners. 
But  the  learned  Judge  did  not  direct  the  juiy  to  acquit, 
33 


\^i 


208 


JEBB'S    RESERVED   CASES. 


[February  1 


nor  tell  them  that  in  his  opinion  they  were  bound  or 
that  they  ought  to  acquit  the  prisoners,  or  either  of 
them ;  but  he  left  the  objections  to  the  witnesses'  credit 
(explaining  to  them  the  grounds  of  those  objections)  to 
their  considc  j,tion. 

The  jury,  who  had  appeared  to  give  great  attention 
to  the  evidence,  to  the  observations  made  to  them  by  the 
prisoners'  counsel,  and  to  the  charge  of  the  learned 
Judge,  on  the  case  being  closed,  immediately  and  with- 
out any  hesitation  found  both  the  prisoners  guilty. 


The  learned  Judge,  although  he  concurred  with  the 
jury  in  thinking  the  prisoners  guilty,  told  the  prisoners' 
counsel  that  he  should  bring  the  case  before  the  Judges 
for  their  consideration;  in  order  that  if  it  should  be  their 
opinion  that  he  ought  to  have  told  the  jury  to  acquit  the 
prisoners,  or  that  unaer  all  the  circumstances  the  con- 
viction was  not  so  satisfactory  as  that  the  prisoners 
ought  to  undergo  their  sentence,  he  might  recommend 
them  to  government  for  a  pardon. 

The  Twelve  Judges  were  unanimously  of  opinion 
that  the  conviction  was  right  («). 


I 


{a)  Vide  Rex  v.  Slicchan,  ante,  54;  and  note. 


of 


11 


lfi37. 


RRX   t).   SHANNON. 


m)» 


*TIIE  KING  t..  RACHAEL  SHANNON. 


An  indictment  cliiirqrod  iin  nttcnipt  to  poison  by  mixing  a  certain  no.viouR  and  des- 
truclivc  tl)injGf  ciillcd  miaar  nf  Iniil,  witli  flour,  and  administering  the  said  poison 
so  mixed  witli  Dour.  'I'lie  .Jury  toiiiid  llio  prisoner  guilty,  l)ut  sliiti:d  that  tliey 
eonhi  not  say  what  piirticular  kind  ol"  puisoa  had  been  mixed  up  vvitii  the  flour. 
Held,  that  tiic  coiivietiun  was  good. 


h  union 


The  prisoner  in  this  case  was  tried  before  Richards,  B., 
at  the  Spring  Assizes  for  Cork,  in  1537,  for  an  attempt 
to  poison  Many  Hiclipy,  by  adminislerintr  to  her  poison 
mixed  in  flour,  and  made  into  a  cake  by  the  prisoner. 
There  was  but  one  count  in  the  indictment,  which  was 
as  follows:  "That  she,  Rnchael  Shannon,  wilfully,  ma- 
"liciously,  feloniously,  and  unlawfully,  did  mix  and 
"  mingle  certain  poison,  to  wit,  a  quarter  of  an  ounce  of 
"  a  certain  noxious  and  destructive  thing  called  sugar  of 
''lead,  with  flour,  and  the  said  poison  so  mixed  with 
"flour  as  aforesaid,  to  wit,  on  the  27th  of  February  in 
"  the  year  aforesaid,  at  Bandon,  in  the  said  County  of 
"  Corlx,  wilfully,  &c.  did  administer  to,  and  cause  to  be 
"  taken  by,  the  said  Mary  Ilickeyy 


The  case  for  the  prosecution  was  clearly  proved 
against  the  prisoner,  except  only  with  regard  to  the 
particular  description  of  poison  used;  and  upon  that 
subject  there  was  no  satisfactory  evidence,  the  fragments 
of  the  cake  having  been  thrown  aside  and  Inst  in  the 


rnr 


*   '\r. 


209 


JEBB'S    RESERVED   CASES. 


[May  21 


confusion  that  took  place  in  Mrs.  Ilicher/s  house  upon 
her  sudden  and  ahinning  ilhic.ss;  and  altliough  she  and 
the  otlier  persons  who  liad  partalvcn  of  the  cake  and 
were  affected  by  it,  were  attended  by  a  medical  man,  ho 
did  not  for  some  reason  or  other  take  the  precaution  of 
analyzinrr  the  matter  thrown  off  the  stomachs  of  his  pa- 
tients. He  however  stated  that  he  was  of  opinion  that 
[•*210]  the  poison  could  not  have  been  sugar  of  *  lead, 
but  said  he  was  unable  to  say  what  the  particular  des- 
cription of  poison  was  that  had  been  used. 


n   .1 

i 


I  '' 


Under  these  circumstances  the  counsel  for  the  pri- 
soner insisted  that  the  learned  Baron  should  direct  the 
jury  to  return  a  verdict  of  not  guilty,  inasmuch  as  there 
was  no  evidence  (as  they  contended)  to  sustain  that  part 
of  the  indictment  that  charged  the  prisoner  with  having 
administered  sugar  of  lead  to  Mary  Hicleij,  or  at  least 
that  his  lordship  should  direct  the  jury  to  acquit  the 
prisoner  unless  they  sliould  feel  satisfied  upon  the  evi- 
dence tluit  the  jjoison  or  noxious  matter  mixed  with  the 
Hour,  by  the  prisoner,  was  the  same  as  that  described  in 
the  indictment,  viz.  sugar  of  lead.  The  learned  Baron, 
however,  in  charging  the  jury,  told  them  that  if  they 
believed  the  evidence  for  Ww.  prosecution,  and  were  of 
opinion  that  the  prisoner  did  knowingly,  wilfully,  and 
maliciously  mix  in  the  cake  any  kind  of  poison  or  poi- 
sonous matter  calculated  to  take  away  life,  and  intended 
thereby  to  take  away  the  life  of  Marij  Ilk' "ij,  they 
Sliould  fmd  the  prisoner  guilty,  though  they  should  not 


18:17. 


REX   I'.   SHANNON. 


810 


be  able  to  make  up  their  minds  whether  the  particular 
poison  so  made  use  of  was  tliat  described  in  tlie  indict- 
ment or  not. 

The  jury  brought  in  a  verdict  of  guilty,  but  upon 
delivering  in  their  verdict,  they  stated  to  the  court  that, 
they  were  unable  to  say  what  particular  kind  or  des- 
cription of  poison  it  was  that  had  been  mixed  up  in  the 
flour  by  the  prisoner;  and  they  added,  that  if  tho  indict- 
ment could  only  be  sustained  upon  their  finding  the 
poison  to  be  sugar  of  lead,  they  would  not  have  felt 
themselves  warranted,  upon  the  evidence,  in  bringing 
in  a  verdict  of  guilty  against  the  prisoner.  Under  these 
circumstances  (having  recorded  *  sentence  of  [-^ail] 
death  against  the  prisoner)  the  learned  Baron  reserved 
the  point  raised  by  the  prisoner's  counsel,  for  the  con- 
sideration of  the  Judges. 

Eleven  Judges  {Dohertij,  C.  J.  C.  Pleas,  being  ab- 
sent) unanimously  held  that  the  couviclion  was  right. 


Sl'c  post,  The  Queen  v.  Brady,  Q.17,  where  tiic  iiidicliiK'nt  cliarfjcd  Iinvliig  shot 
at  15.  with  intent,  SiC,  with  a  gun  loaded  with  fruiipowder  and  leaden  slu^js,  and 
in  a  second  count,  witii  gunpowder  and  leaden  shot.  The  Judge  told  the  Jury  that 
it  was  Dot  necessary  they  should  he  satisfied  tiiat  the  gun  was  loaded  specilj. 
cally  with  shot  or  slugs,  for  if  the  Jury  believed  that  the  gun  was  loaded 
with  any  suhstanre  i;sually  employed  to  load  guns  and  to  act  like  shot  or  slugs,  it 
was  enough,  'i'he  Ju.lges  held  tiiat  (lie  convif'tioii  was  right.  Sec  Roscoe's  (Iriiii. 
P^vid.  p.  91,  Sharswood's  cd,  Phil.  1^40. 


\ 


M 


l! 


SI  I 


JEBB'S   REHRRVED   CASES. 


[May  31 


IN  the  Matter  of  TIIESEXTMRNTS  for  CORONi::iS  in  the 
County  of  CAVAN. 


•A  person  who  nets  ns  n  coroner  merely  within  the  limits  ofn  bornuyh,  I:*  a  coroner 
within  the  muuninir  of  tiiu  ti  <&,  7  W.  1,  c,  IIU,  s.  1)7,  no  an  to  entitle  him  to  a 
preHeiitinent, 

Tlic  maximum  presentable  for  each  coroner,  nndcr  tlio  G  &.  7  W.  4,  c.  IIG,  s.  97,  iii 
X'2  for  eucli  inqiiest,  even  ultiiouyh  lliat  shouhi  excx-ed  £'M, 

Tiie  maximum  pfsentuhle  for  till  the  coroners  in  tlie  county  o^  Ctivan,  is  X'!)0. 

Where  X'DO  is  tho  nKixinunii  presentable  for  all  the  coroners  of  a  county,  if  the 
lininhcr  of  in(|uests  bus  been  sueh  that  a  payment  of  X'2  for  each  inipiest  would 
make  a  sum  exceediii;[r  X'!)0  in  the  whole,  then  each  coroner  is  to  abate  aceord- 
injr  to  iiis  number  of  in<|uest.-i,  until  the  sum  is  reduced  to  jU!)l). 

Where  the  matfistralcs  at  Sessions  lifl  blanks  in  some  of  the  numbers  in  the  sche- 
dule relating  to  presentments  for  coroners,  on  account  of  doubts  whieh  they  ielt 
as  to  the  sums  to  be  inseited;  Hild,  that  it  was  competent  to  the  tirand  Jm-y  to 
fill  up  those  blanks,  after  having  been  advised  by  the  Judge;  notwithstanding 
the  6&,7  W.  4,  c.  llti,  s.  17. 

Quwre,  whether  the  maxiuvtm  presentable  for  all  the  coroners  of  n  county  \a  to  Ik; 
regulated  by  the  number  of  coroners  allowed  by  schedule  S  of  the  (i  &-  7  W.  •!, 
c.  IIG,  or  by  the  actual  number  of  coroners,  where  that  number  is  less  than  Ihu 
schedule  of  the  Act  allows? 


At  the  Spring  Assizes  for  the  County  of  Caimn,  in 
1837,  when  Bushe,  C.  J.,  was  passing  the  presentments 
for  the  County  at  large,  the  Grand  Jury  called  his  lord- 
ship's attention  to  the  numbers  12,  13,  14,  and  19  in  the 
schedule,  as  they  came  to  them  from  Sessions.  They 
were  all  founded  on  applications  from  Coroners,  accom- 
panied by  inquisitions  held  by  each,  and  they  were  all 
endorsed  "  approved  at  Sessions,  H.  Maxwell,  chairman." 
Numbers  14  and  19  specified  the  sums  for  which  the 
presentment  was  to  be  granted ;  numbers  12  and  13  had 
blanks  for  the  sums ;  number  12  in  the  printed  schedule 


II  J 


'M 


1837.! 


CAVAN    PRESENTMENT,   CORONEUS. 


Sll 


was  for  one  in([uest  less  than  was  claimed,  as  appeared 
by  coitiparing  it  with  the  *  manuscript,  wliicli  [*212] 
sliovved  that  the  case  was  investijjrated  at  Sessions. 


The  Secretary  of  the  CJrand  Jury  info  med  Bushc,  C. 
J.,  oflricially,  "that  the  reason  why  the  Bench  at  Ses- 
•'sions  did  not  name  any  fixed  sum  for  each  of  the 
"  coroners  in  those  numbers  was,  that  they  entrrtained 
'•  doubts  as  to  the  law,  and  wished  that  the  Grand  Jury 
"  might  use  their  discretion  in  allocating  such  sums  as 
"  they  mi^^ht  think  lit,  with  the  consent  of  the  Judge  of 
"  Assize."  lie  and  the  Grand  Jury  also  informed  the 
Court  that  William  Burrowes  acted  as  coroner  merely 
within  till  limits  of  the  jurisdiction  of  the  borough  of 
Cavan,  and  that  the  practice  had  theretofore,  been,  for 
more  than  20  years  p;ijsl,  to  present  to  him,  pursuant  to 
the  Coroners'  Act,  for  each  inquest  held  by  him  within 
the  borough;  and  that  there  were  no  other  coroners  in 
the  county  except  Mr.  Cottingham  and  Mr.  M'Fadden, 
the  applicants  in  Nos.  12  and  13. 


i 


lan. 
[h  the 

bhad 
ledule 


The  charter  of  King  James  I.  incorporating  the  Bo- 
rough of  Cavan,  was  produced,  by  which  the  sovereign 
is  appointed  ^^ex-oj/icio  Coroner  for  the  borough,  that 
"  is,  one  mile  around,  and  no  other  Coroner  to  inter- 
meddle." 

The  respective  numbers  in  the  schedule  were  in  the 
following  words:— No.  12.— "4  G.  IV.  c.  43;  5  G.  IV. 


^  *x^ 

^'\*^. 


M 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


/. 


^V-^ 


1.0  :^i^  K£ 

^^s    lit  lit 

II        S  Its   120 


1^        U4 


FholDgFEiphic 


bdeooes 
CorpQFatiQn 


WltSTII,N.Y.  14110 
(7I*)I71-4SM 


\m* 


«:. 


ill 


213  JEBB'S   RESERVED  CASES.  [May2i 

"c.  93;  and  6  &  7  W.  IV.  c.  116,  s.  97.  To  John 
"  Cor-per  Cottingham,  Esq.  one  of  the  Coroners  for  said 
"  County,  for  holding  22  inquests  in  this  County  pre- 
"  vious  to  1st  Nov.  1836,  and  9  inquests  since;  in  all  31 

"inquests  since  last  Assizes;  £ ."     No.  13,  ihid. — 

"  To  John  M  'Fadden,  Esq.  one  of  the  Coroners  for  said 
"  County,  for  holding  9  inquests  previous  to  1st  of  No- 
"  [*213]  vember,  1836,  and  7  *  inquests  since,  in  that 

"County;  in  all  16  inquests  since  last  Assizes;  £ ." 

No.  14,  ibid. — "To  William  Bwrowes,  Esq.  v ice-so ve- 
"  reign  and  Coroner  of  Cavan  Borough,  for  holding  2 
"  inquests  in  said  borough  previous  to  1st  of  November, 
"  1836,  3  ditto  since,  in  all  5  inquests,  since  last  Assizes; 
"£18  105."  No.  19.— "4  G.  IV.  c.  43,  5  G.  IV.  c.  93; 
"and  6  &  7  W.  IV.  c.  116,  s.  97.  To  Surgeon  Coijne 
"  for  attending  and  giving  evidence  on  an  inquest  held 
"  in  the  Half  Acre,  Cavan,  by  order  of  William  Bur- 
Crowes,  Esq.  £2  25." 

Upon  these  facts  and  documents  the  Grand  Jury  told 
Bushe,  C.  J.,  that  they  found  some  difficulty  in  constru- 
ing the  late  statute  6  &  7  W.  IV.  c.  116,  s.  97,  upon 
which  conflicting  opinions  were  entertained;  and  re- 
quired his  lordship's  advice  upon  the  following  ques- 
tions:— 1st,  whether  the  Grand  Jury  were  at  liberty  to 
fill  up  the  blanks  left  by  Sessions  in  numbers  12  &  13, 
their  functions  being  confined  by  s.  47  of  the  late  Act, 
to  approval  or  rejection  of  what  is  done  at  Sessions. 
The  learned  Chief  Justice  told  them,  that  in  his  opinion, 


1837.] 


CAVAN  PRESENTMENT,  CORONERS. 


213 


as  the  Sessions  had  exercised  a  judgment  on  those  appli- 
cations, and  made  a  decision  in  point  of  merits,  md  had 
only  left  open  a  question  of  law  upon  the  new  statute 
as  to  amount,  for  the  decision  of  the  court  at  the  Assizes, 
it  seemed  to  him  that  it  was  compatent  to  the  Grand 
Jury,  after  being  advised  hy  the  Judge,  to  fill  up  those 
blanks;  but  that  as  there  were  other  questions  which 
he  must  refer  to  the  Twelve  Judges,  he  should  also 
refer  that. 


li 


The  second  question  was,  whether  Mr.  Burrowes  was 
a  Coroner  within  the  late  Act  of  Parliament  so  as  to 
entitle  him  to  a  presentment.  With  respect  to  this 
question,  it  *was  material  to  observe  that  [*214] 
the  expressions.  Coroner  "for"  the  County,  "of"  the 
County,  and  "  in"  the  County,  were  used  indifferently, 
not  only  in  the  late  Act,  but  in  the  preceding  statutes 
relating  to  Coroners,  viz.  the  1  G.  IV.  c.  28;  3  G.  IV. 
c.  115;  and  4  G.  IV.  c.  43. 


The  third  question  was,  whether,  if  Mr.  Burrowes 
were  not  a  Coroner,  the  maximum  for  the  sum  to  be 
presented  was  to  be  calculated  upon  the  number  of 
actual  Coroners,  which  on  that  hypothesis  would  be 
reduced  to  two;  or  upon  the  number  (three)  in  the 
schedule  referred  to  by  s.  97;  i.  e.  whether  the  sum 
was  to  be  £90  or  £60. 


iii 


The  fourth  question  was  whether  the  maximum  of 
34 


+i 


214 


JEBB'S   RESERVED   CASES. 


[May  24 


■  ■  (■ 


the  distributable  fund  to  be  apportioned  by  the  Grand 
Jury  was  to  be  £  30  for  each  Coroner,  or  two  pounds 
for  eacli  inquest,  even  although  that  should  exceed 
£30. 


P 


I. 


Accordingly  as  the  Judges  should  decide  the  second 
question,  the  presentments  in  numbers  14  and  19  were 
to  be  fiated  or  nilled;  and  according  to  their  decision 
on  the  third  and  fourth  questions,  the  blanks  in  12  and 
13  were  to  be  filled  up  with  the  proper  sums  as  the  act 
of  the  Grand  Jury,  if  upon  the  first  question  the  Judges 
should  think  that  the  Grand  Jury  had  authority  to 
do  so. 


i-    H 


Eleven  Judges  being  present  {absente  Doherty,  C.  J. 
C.  Pleas),  they  were  all  of  opinion,  upon  the  first  ques- 
tion, that  the  Grand  Jury  were  at  liberty  to  fill  up  the 
blanks  left  at  Sessions,  after  being  advised  by  the  Judge. 
(Jpon  the  second  question,  seven  Judges  (Bushe,  C.  J., 
Joy,  C.  B.,  Johnson,  J.,  Burton,  J.,  Pennefather,  B., 
Foster,  B.,  and  Richards,  B.,)  held  that  Mr.  Burrowes 
r*215]  was  a  *  Coroner  within  the  meaning  of  the  Act, 
so  as  to  entitle  him  to  a  presentment.  The  remaining 
four  Judges  held  that  he  was  not.  Upon  the  third 
question,  eight  Judges  (viz.  the  seven  above  enume- 
rated, and  Crampton,  J.),  held  that  the  sum  of  £90  was 
in  the  County  of  Cavan  the  maximum  presentable. 
The  remaining  three  Judges  held  that  the  sum  of  £  60 
was  the  maximum.      Upon  the  fourth  question  the 


1837.] 


CAVAN    PREi?ENTMENT,   CORONERS. 


315 


Judges  held  (a)  that  £2  for  each  inquest,  even  though 
it  should  exceed  £  30  in  the  whole,  was  the  maximum 
presentable  for  each  Coroner. 


The  result  of  the  decision  was,  that  Mr.  Burrowes 
was  a  Coroner  within  the  Act,  and  that  each  of  the 
three  Coroners  was  entitled  prima  facie  to  £2  for  each 
inquest  held  by  liim,  which  would  altogether,  in  this 
case,  amount  to  £  104.  This  sum,  however,  exceeded, 
by  £  14,  the  maximum  for  the  County  of  Cavan,  and 
therefore  each  Coroner  was  to  abate  according  to  his 
number  of  inquests,  so  as  to  make  the  whole  sum  pre- 
sented only  £90.  With  respect  to  the  third  question, 
some  of  the  majority  rested  their  opinion  (that  £  90  was 
the  maximum)  on  the  ground  that  three  was  the  number 
of  Coroners  in  the  schedule  to  the  Act,  and  others  on 
the  ground  that  three  was  the  actual  number  of  Coro- 
ners; but  Mr.  Burrowes  having  been  held  to  be  a  Coroner, 
and  the  actual  number  being  thus  made  equal  to  the 
number  in  the  schedule,  it  became  unnecessary  to  decide 
this  point,  as  qmcunque  via  data  £90  would  be  the 
maximum. 


(a)  Whether  unanimously,  or  by  a  large  majority,  cannot  prceiscly  be  stated. 


was 

ible. 

£60 

the 


:H 


r. 


1  t 


/  -I 


•31 G 


JEBB'S  RESERVED  CASES. 


[May  34 


*  IN  the  Matter  of  CAVAN  PRESENTMENTS  to  Clerks 
of  the  Peace  for  copying  JURORS'  BOOKS. 

Since  the  passing  of  tlic  6  &  7  W.  4,  c.  116,  no  presentments  can  be  made  to 
remunerate  clerks  of  the  peace  for  providing  and  copying  jurors'  books,  and 
preparing  precepts  and  returns,  under  ss.  5  &.  9  of  the  Jurors'  Act,  3  &  4  W.  4, 
c  91.  The  construction  of  the  6  &  7  W.  4,  c.  IIC,  s.  1,  is,  that  no  presentment 
can  be  lawful  unless  authorized  by  an  enactment,  or  an  express  exception,  in 
that  statute. 

At  the  Spring  Assizes  for  the  Counties  of  Cavan  and 
Fermanagh,  in  1837,  presentments  were  offered  to  Bushe, 
C.  J.,  by  the  foreman  of  the  Grand  Jury,  in  the  former 
County  for  £3  IO5.,  and  in  the  latter  for  £  10,  to  be  paid 
to  the  respective  clerks  of  the  peace  for  each  County, 
for  providing  and  copying  the  Jurors'  books  for  the 
year  1837,  and  preparing  precepts  and  returns  for  the 
collectors  to  make  out  the  same. 


r 


I 


18 


Jl 

m 
M 


in 


|.    .M 


i 


These  presentments  were  said  to  be  authorized  by 
the  5th  and  9th  sections  of  the  Jurors'  Act,  3  &  4  W. 
IV.  c.  91 ;  but  as  it  appeared  to  the  learned  Chief  Jus- 
tice that  there  were  not  any  sections  in  the  last  Grand 
Jury  Act,  6  &  7  W.  IV.  c.  116,  warranting  these  pre- 
sentments by  the  way  either  of  enactment  or  exception, 
his  lordship  did  not  consider  himself  at  liberty  to  fiat 
them.  However,  at  the  request  of  the  officers  interested, 
who  represented  it  as  a  case  of  hardship,  he  reserved 
the  question  for  the  consideration  of  the  Judges. 


'  J 


1837.] 


MEDICAL  OFFICERS,   MONAGHAN 


316 


Ten  Judges  {Doherty,  C.  J.  C.  Pleas,  being  absent, 
Joy,  C.  B.,  dissentiente),  decided  against  the  present- 
ment, upon  the  ground  that  the  1st  section  of  the  6  &  7 
W.  IV.  c.  116,  renders  void  all  presentments  that  are 
not  supported  either  by  an  enactment  or  an  exception 
in  that  statute. 


IN  the  Matter  of  Presentments  for  MEDICAL  OF-    [*217] 
FICERS  in  the  Co.  of  MONAGHAN. 


by 

W. 

iJus- 

:and 
Ipre- 
tion, 

fiat 
ited, 

:ved 


Jhldt  by  six  Judges  against  five,  that  the  6  &  7  W.  4,  c.  IIG,  s,  86,  docs  not  ren- 
der it  imperative  upon  the  grand  jury  to  make  a  presentment  for  the  surgeon  of 
the  infirmary  who  tenders  his  services  to  the  prisoners  in  the  gaol,  where  tliere 
has  been  a  surgeon  previously  appointed  for  tlic  gaol  by  the  grand  jury,  and  paid 
by  presentment. 


At  the  Spring  Assizes  for  the  County  of  Monaghan,  in 
1837,  two  presentments  were  brought  before  Torrens, 
J.,  under  the  following  circumstances : 

Dr.  Samuel  M' Dorvell  WB.8  appointed  to  the  situation 
of  surgeon  to  the  county  infirmary  in  the  year  1800, 
arri  subsequently  to  that  of  surgeon  to  the  county  gaol, 
and  continued  to  hold  both  appointments  for  several 
years,  receiving  a  salary  of  £  100  a  year  from  govern- 
ment for  the  infirmary,  and  for  the  gaol  £74  a  year 
from  the  county,  by  presentment  made  under  the  sta- 


,!      ! 


m 


ii 


"f? 


an 


JEBB'S  RESERVED  CASES. 


[Moy  24 


'B  >{; 


tutes  than  iu  force.  On  the  16th  day  of  July,  1833,  he 
resigned  the  situation  of  surgeon  to  the  county  gaol,  but 
retained  that  of  surgeon  to  the  infirmary.  At  the  Sum- 
mer Assizes  of  1833,  the  grand  jury  then  assembled, 
unanimously  appointed  his  son,  John  S.  McDowell,  to 
be  surgeon  to  the  gaol  in  his  place,  under  the  7  G.  IV. 
c.  74,  s  72,  and  the  usual  salary  was  at  each  following 
assizes  presented  for  him.  On  the  13th  of  November, 
1836,  Lr.  Samuel  McDowell  also  resigned  the  situation 
of  surgeon  to  the  county  infirmary ;  and  in  the  month 
of  December  following,  the  governors  of  that  infirmary 
held  an  election,  and  Dr.  Young  was  appointed^.  From 
the  time  that  Dr.  Samuel  M'Dowell  resigned  the  office 
of  surgeon  to  the  gaol  in  the  year  1833,  to  the  month  of 
November,  1836,  (during  which  time  he  continued  sur- 
geon to  the  county  infirmary)  he  never  received  any 
salary  whatever  from  the  county,  but  merely  the  £  100 
a  year  from  government. 

[*218]  By  the  6  &  7  W.  IV.  c.  116,  s.  86,  it  was 
enacted,  "  That  the  grand  jury  of  any  county  may  pre- 
"  sent  at  each  assizes  a  sum  not  exceeding  £  47,  to  be 
"  raised  off  such  county,  and  paid  to  the  surgeon  of  the 
"infirmary  thereof;"  one  of  the  requisites  to  be  per- 
formed before  such  presentment  can  be  made,  being, 
"  that  such  surgeon  shall  have  given  his  attendance  and 
"  professional  assistance,  without  any  other  or  further 
"  reward  or  fee,  to  the  prisoners  and  others  in  the  gaol 
"  of  the  county  to  the  infirmary  of  which  he  has  been 


1837.] 


MEDICAL   OFFICERS,  MONAGIIAN. 


318 


"  appointed  surgeon,  if  such  gaol  is  situate  within  five 
•*  miles  of  such  infirmary."  Immediately  after  his  hav- 
ing been  elected  surgeon  to  the  county  infirmary,  Dr. 
Young  went  to  reside  in  the  town  of  Monaghan,  entered 
into  the  discharge  of  his  duties  as  the  surgeon  of  the 
infirmary,  and  offered  his  services  and  professional 
assistance  to  the  prisoners  in  the  gaol,  as  required  by 
the  provisions  of  the  foregoing  Acts.  His  services  would 
not  be  accepted,  and  the  governor  of  the  gaol  refused  to 
permit  him  lo  attend  the  prisoners,  or  give  them  his 
professional  assistance.  In  consequence  of  this  refusal 
Dr.  Young  addressed  the  following  letter  to  the  Governor 
and  Board  of  Superintendence  of  the  County  of  Mona- 
ghan  gaol : 


(( 

(( 

was 

(< 

)re- 

(( 

)  be 

i( 

the 

(( 

por- 

if 

ing, 

tt 

and 

ti 

her 

11 

raol 

(( 

leen 

« 

Gentlemen, 

"  Having  attended  on  the  17th  day  of  January  inst.  at 
the  County  of  Monaghan  gaol,  to  afford  my  profes- 
sional services  and  assistance  to  the  prisoners  and 
'  others  within  such  county  gaol,  gratuitously  and  with- 
out fee  or  reward  from  them,  pursuant  to  the  duty 
'  imposed  on  me  as  surgeon  to  your  County  Infirmary, 
by  the  provisions  of  the  several  statutes  upon  that 
*  subject,  I  hereby  inform  you,  that  admittance  [*219] 
'  for  the  above  purpose  was  refused  on  that  occasion,  and 
that  I  was  prevented  from  rendering  such  professional 
assistance  and  services;  I  therefore  request  that  you 
'  will  have  the  goodness  to  give  the  necessary  orders 
that  I  shall  have  free  admittance  for  the  above  men- 


I 


liji 


i 


: 


I  f 


> 

r 

'■>■ 


II 


I 


8tl 


JEBB'S  RESERVED  CASES. 


[May  94 


"  tioned  purpose.  I  will  wait  your  answer,  naming  the 
"  day  when  I  may  attend  at  the  house  of  Mr.  George 
"  Moore,  in  Glasslough-street. 

"  I  have  the  honor  to  be,  &c., 
"January  17,  1837.  "A.  R.  Young,  M.D." 

To  this  application  the  Board  of  Superintendence 
gave  the  following  answer :  •'  At  a  meeting  of  the  Board 
"  of  Superintendence  of  the  county  Monaghan  Jail, — 
"Resolved,  that  having  taken  into  consideration  Dr. 
"  Young* s  application,  the  board  consider  that  they  have 
"  not  the  power  to  make  any  appointment  to  any  office, 
"  unless  in  case  of  such  office  becoming  vacant  between 
two  assizes,  and  that  no  such  vacancy  has  in  this  case 
occurred;  and  therefore  they  are  not  authorized  in 
"recognizing  any  other  medical  attendant  than  the 
"  present. — Signed,  &c." 

At  the  Spring  Assizes  for  the  Co.  of  Monaghan,  in 
1837,  Dr.  J.  S.  M'Dowell  applied  to  the  grand  jury  for 
the  presentment  of  his  salary  of  £  37,  half  yearly,  as 
usual,  which  had  been  regularly  presented  to  him  at 
every  assizes  since  his  appointment,  and  the  grand  jury 
allowed  the  presentment.  Dr.  Young  also  applied  at 
the  same  assizes  for  a  presentment  for  £47,  being  one- 
half  of  the  salary  of  £94,  to  which  he  sought  to  be 
entitled  under  the  6  and  7  Wm.  IV.  c.  116,  and  the 
grand  jury,  under  the  86th  section  (Dr.  Young  by  his 
counsel,  not  seeking  more),  presented  him  a  sum  of  £37. 


(( 


(( 


m 


1837.] 


MEDICAIi    OFFICEUS,    MONAGIIAN. 


2',»0» 


iW' 


*  Torrens,  J.,  respited  both  presentments,  {i.  e.  Dr. 
Young's  for  tlie  infirmary,  and  Dr.  M'DowcWa  for  the 
gaol,)  until  lie  should  have  an  opportunity  of  having 
the  opinion  of  the  twelve  Judges  on  the  following 
points: — First,  whether  it  was  imperative  on  the  grand 
jury  to  present  a  sum  at  each  assizes,  not  exceeding 
X'47,  to  the  surgeon  of  the  county  infirmary,  provided 
he  either  attends  or  is  willing  to  attend  the  prisoners 
in  the  gaol  gratuitously,  and  without  fee  or  reward? 
Secondly — Whether,  if  it  were  imperative  on  the  grand 
jury  to  present  a  remuneration  under  the  Statute  to  the 
Surgeon  of  the  county  infirmary,  that  presentment  was 
to  supersede  the  presentment  which  the  surgeon  to  the 
gaol  had  applied  for,  or  whether  the  county  was  to  be 
burthened  with  the  expense  of  two  medical  officers  for 
the  same  establishment? 

Neither  neglect  nor  insuflficient  discharge  of  duty 
was  ever  imputed  to  either  of  the  oflEicers  in  question 
since  their  respective  appointments.  On  the  part  of 
Dr.  McDowell,  (who  was  a  physician  and  surgeon,)  it 
was  insisted  that  he  having  been  legally  appointed,  and 
having  duly  performed  all  the  duties  of  the  situation, 
the  grand  jury,  under  the  provisions  of  the  several  Acts 
of  Parliament,  and  in  particular  of  the  7  G.  IV.  c.  74, 
s.  72;  the  schedule  to  4  G.  IV.  c.  43;  6  and  7  Wm.  IV. 
c.  116,  ss.  110  &  124;  and  3  &  4  Wm.  IV.  c.  92,  s.  6; 
were  bound  to  present  from  time  to  time  for  his  salary 
of  £  37  half-yearly.  On  the  part  of  Dr.  Young,  it  was 
represented,  that  having  complied  with  all  the  neces- 
35 


f! 


890 


JEUB'8    RESERVED  CASES. 


[Mny  34 


sary  requisites  reciuired  by  these  Acts  of  Parliament,  he 
had  submitted  his  application  for  his  salary  as  Surgeon 
of  tlie  county  infirmary  to  the  special  sessions,  held 
previous  to  the  assizes;  that  his  application  was  ap- 
proved of,  and  a  presentment  grounded  upon  it  was 
[*22l]  *  made  by  the  Grand  Jury  in  his  favor  for 
jC37;  and  that  the  grand  jury  were  hound  to  make  a 
presentment  in  his  favor  as  Surgeon  to  the  county  infir- 
mary, in  obedience  to  the  provisions  of  the  several 
statutes  before  referred  to;  tiiat  it  appeared  from  these 
statutes,  and  especially  from  the  preamble  of  the  54  G. 
III.  c.  62,  to  have  been  the  object  of  the  legislature,  to 
procure  duly  qualified  persons  who  had  been  regularly 
educated  for  the  profession  of  Surgeons,  to  fill  the 
situation  of  Surgeons  to  the  several  county  infirmaries 
throughout  Ireland,  and  with  that  view  to  make  it  im- 
perative on  the  grand  juries  to  present  a  suitable  salary 
for  them ;  the  Surgeons,  as  one  of  the  considerations  for 
such  presentments,  being  obliged  to  give  their  attend- 
ance and  professional  assistance  to  the  prisoners  in  the 
county  gaol,  without  further  fee  or  reward. 

Eleven  Judges  having  met  {Dohertij,  C.  J.  C.  Pleas, 
being  absent)  six  of  them  (Joy,  C.  B.,  Moore,  J.,  John- 
son, J.,  Pennefather,  B.,  Burton,  J.,  and  Torrens, 
J.,)  were  of  opinion,  that  the  presentment  to  Dr. 
Young,  the  Surgeon  of  the  infirmary,  should  be  nilled; 
the  remaining  five  Judges  holding,  that  it  should  be 
fiated.  All  present  held,  that  the  presentment  to  Dr. 
M'Dowell,  the  Surgeon  of  the  gaol,  should  be  fiated. 


1H37.] 


ROAD   TRAVERSER,    FERMANA<;II. 


933« 


*  IN  tho  Matter  of  Officers'  Pecs  upon  ROAD  TRAVERSES, 
County  of  FERMANAGH. 


The  fro  of  5».  paid  by  tho  pnrty  travcrsintf  to  tlio  crior  upon  the  trial  of  n  rond 
travcmo  fur  duinnircN,  in  a  lawful  one,  ond  iniiy  lio  received  by  biin  iintwithKtiind- 
ini;  tho  G  Sl  7  \V.  I,  c.  110,  k.  110.  liut  it  U  not  to  be  inchided  in  the  verdict 
hb  prirt  of  tho  daiimircti  MUHtiiinc^d.  Qiirvre  aa  to  tho  le^ulity  of  ii  fuu  to  the  clerk 
of  tlio  crown  under  tho  name  circum^jtancc*. 


iJoHN- 
LRENS, 

to  Dr. 

lilled; 
luld  be 

to  Dr. 

ed. 


At  the  Spring  Assizes  for  the  County  of  Fermanagh,  in 
1837,  several  traverses  for  the  damages  occasioned  by 
making  new  or  widening  old  roads  wore  tried  before 
Bushe,  C.  J.,  on  the  last  day  of  the  Assizes;  in  the  pro- 
gress of  which  trials  his  lordship  was  informed  by  tho 
crier  that  the  traversers  were  each  paying  to  him  a  fee 
of  five  shillings,  being  that  to  which  previous  to  the  6 
and  7  W.  IV.  c.  116,  he  had  been  entitled,  and  retinested 
directions  as  to  how  he  should  act.  The  clerk  of  the 
crown  also  stated  that  he  considered  himself  entitled  to 
a  fee  of  £  1  45.  on  each  traverse,  and  that  both  his  fee 
and  the  crier's  were  paid  by  the  traversers,  without  ob- 
jection. In  support  of  his  own  claim  he  observed,  that 
the  133d  section  of  the  Act  did  not  apply  to  traverses 
for  damages,  but  only  to  general  traverses,  such  as  for 
inutility  or  illegality,  which,  as  being  of  a  public  nature, 
the  legislature  in  that  section  encourages  and  protects, 
not  merely  by  depriving  the  clerk  of  the  crown  of  his 
fees,  in  respect  of  such  traverses,  but  by  enacting  that 


I    'I 


!i 


I 

111  ill' ii:, 


HI 


ii 


I  ■ 


S23 


JEBB'S  RESERVED  CASES. 


[June  7 


the  costs  payable  by  a  traverser  defeated  upon  trial  shall 
be  paid  by  the  county,  if  the  Court  shall  be  of  opinion 
that  there  was  reasonable  cause  for  the  traverse :  whereas 
in  the  following  section,  (the  134th,)  regulating  tra- 
verses for  damages  occasioned  by  making  or  widening 
roads,  which  are  proceedings  for  compensation  by  an 
individual,  there  is  no  prohibition  against  the  clerk  of 
the  crown  taking  fees.  Secondly,  he  insisted  that  the 
110th  section  of  the  late  Act  must  be  interpreted  as  the 
former  Act  of  4  G.  IV.  c.  43,  which  is  not  repealed  by 
[*223]  the  late  Act  except  so  far  as  the  Acts  *  are  in- 
consistent with  each  other ;  according  to  which  statute 
the  salaries,  then  for  the  first  time  given,  were  only  in 
lieu  of  fees  theretofore  paid  by  presentment,  which  the 
fees  in  question  never  had  been ;  and  he  called  the  atten- 
tion of  the  Court  to  the  112th  section,  which  recognizes 
the  emoluments  of  his  office  as  composed  partly  of  fees, 
and  also  to  the  recent  statute  as  having  fixed  the  salary 
of  the  Clerk  of  the  Crown  at  £230,  British  currency, 
which  is  less  than  what  had  been  his  salary  under  the 
4  G.  IV.  c.  43. 


f! 


The  learned  Chief  Justice  did  not  consider  himself 
at  liberty  to  make  any  summary  order  as  to  the  claims  of 
the  Clerk  of  the  Crown,  for  what  he  considered  as  his 
lawful  fees,  which  he  was  at  liberty  to  assert  in  such  a 
way  as  he  might  be  advised;  but  with  respect  to  the 
Crier,  his  lordship  thought  it  the  proper  course  (although 
no  objection  was  made  to  the  fee  by  the  traversers)  to 


1837.] 


ROAD  TRAVERSES,  FERMANAGH. 


223 


take  the  opinion  of  the  Judges,  with  a  view  to  unifor- 
mity of  practice.     Tlie  fees  received  on  this  occasion 
were  deposited  with  the  Registrar,  to  be  returned,  if 
not  considered  legal,  to  the  several  traversers  whose 
names  appeared  on  the  crown  hook. 


The  discussion  of  this  case  having  taken  place  in 
the  presence  of  the  jury,  Bushe,  C.  J.,  desired  them  not 
to  include  in  their  verdicts  the  fees  so  paid  by  the  tra- 
versers, as  had  formerly  been  in  some  counties  the 
practice;  upon  which  they  stated  that  that  had  not 
been  the  practice  in  the  county  of  Fermanagh,  and 
stated  that  their  verdicts  should  be  calculated  exclusive 
of  fees. 


Y4:>^ 


imself 
Bums  of 

as  his 
such  a 

to  the 
though 


Ten  Judges  {Foster,  B.,  being  absent,  Crampton,  J., 
dissentiente,)  were  of  opinion  that  the  fee  in  question 
must  *  be  considered  a  lawful  one  as  long  as  [*224] 
the  resolution  of  the  Judges  in  the  year  1824  remained 
unrescinded ;  and  that  being  lawful,  it  was  not  taken 
away  by  the  6  and  7  Wm.  IV.  c.  116,  s.  110.  Cramp- 
ton,  J.,  held,  that  whether  lawful  or  not,  it  was  taken 
away.  All  present  were  unanimously  of  opinion  that 
the  fee  could  by  no  means  be  made  a  charge  on  the 
county,  and  ought  never  to  be  included  by  the  jury  in 
their  verdict,  as  part  of  the  damages  sustained  («). 


(a)  Secus  as  to  fees  on  burning  petitions,  at  least  under  the  luw  picvinus  to  the 
6  &,  7  \V.  1 ;  see  the  cnse  of  the  Armitsh  liiirninrr  Vctiliun,  uiitr,  IS'i. 
See  ulso  the  case  of  tlie  Clare  Ruad  Trarnse,  post. 


224 


JEBB'S    RESERVED  CASES. 


[June 


IN  the  Matter  of  a  Presentment  to  re]  ray  to  Government  sums 
due  by  a  defaulting  TllEASURER  in  the  County  of 
TYRONE. 


11 

if 


Where  the  treasurer  of  a  county  proved  a  defaulter  to  government  in  the  repay- 
ment of  advances  made  by  the  government  to  the  county,  (the  amount  of  which 
had  been  presented  by  the  grand  jury,  raised,  and  paid  into  the  treasurer's 
hands,)  and,  after  the  government  had  sued  him  and  liis  sureties  upon  their 
recognizances,  there  still  remained  a  balance  due:  Held,  that  the  grand  jury 
were  not  bound  to  present  for  the  deficiency,  under  s.  145  of  the  6  &  7  W.  4.  e. 
116,  and  that  the  Judge  on  their  refusal  was  not  bound  to  make  an  order  under 
8.  179  of  that  Act.  Smnble,  that  the  crown  is  not  witliin  s.  145  of  the  6  &  7  W. 
4,  c.  116. 


At  the  Spring  Assizes  for  the  County  of  Tyrone  in 
1837,  an  application  was  made  to  Moore,  J.,  to  fiat  a 
presentment,  under  the  following  circumstances. 

It  appeared  that  from  the  Spring  Assizes  in  1826  to 
[*225]  the  *  Spring  Assizes  in  1835,  various  present- 
ments were  made  by  the  Grand  Juries  of  the  County 
of  Tyrone,  for  the  repayment  of  advances  of  monies  by 
government  for  various  purposes  to  and  for  that  county, 
under  various  headvS,  viz. — constabulary  police,  building 
and  repairs  of  the  gaol  of  Omagh,  bridewells,  building 
and  support  of  lunatic  asylums,  boards  of  health,  and 
valuation  of  lands;  and  the  several  sums  presented  were 
levied  and  paid  to  the  then  treasurer,  who  had  been 
elected  on  the  26th  of  June,  1826.  It  appeared,  by  an 
account  furnished  by  the  treasury  in  1835,  that  large 


«   !^ 


1837.]    PRESENTMENT,  DEFAULTING  TREASURER.   225 

balances  remained  due  to  the  government,  unpaid  by 
the  treasurer,  after  giving  credits  for  all  payments 
made  by  him  on  the  several  accounts  of  advances 
under  the  heads  before  mentioned,  viz. 

1. — Constabulary  Police,     ... 

2. — Gaol  oi  Omagh,     

3. — Bridewells,       

4. — Lunatic  Asylums,  

5. — Boards  of  Health,    

6. — Valuation  of  Lands,     ... 


.  £5489 

9  41 

.   2415 

4  10 

37 

0  0 

.   2483 

17  10| 

619 

14  Hi 

208 

1  7 

£n253     8 


7-' 

•   2 


The  treasurer,  after  his  election,  entered  into  security 
by  recognizance  as  required  by  law,  himself  in  £  8000, 
and  in  two  sureties  in  £4000  each.  The  government 
finding  that  payment  of  this  large  sum,  or  of  any  part 
of  it,  could  not  otherwise  be  procured,  caused  proceed- 
ings to  be  taken  against  the  treasurer  and  his  sureties 
on  their  recognizances,  and  the  amount  of  the  sureties' 
recognizstnces  was  recovered  from  them,  viz.  £4000 
from  each;  but  no  sum  could  be  levied  as  against  the 
treasurer  himself  Writs  of  levai'i  *were  [*226] 
issued  against  him  to  the  County  of  Ti/?'o?ie,  and  to 
the  County  and  City  of  Dubli?i,  wliere  it  was  supposed 
he  had  property  or  might  be  found  to  be  arrested ;  on 
those  several  writs  returns  were  made  by  the  Sheriffs, 
that  he  was  not  to  be  found,  and  had  no  property  that 
could  be  seized.     After  giving  credit  for  the  two  sums 


23G 


JEBB'S   RESERVED   CASES. 


[June 


of  £  4000  each  paid  by  the  sureties,  there  still  appeared 
a  balance  due  to  the  government  on  account  of  monies 
that  ought  to  have  been  paid  by  the  treasurer  of  £  3253 
55.  Qd. 

The  Treasurer  retained  his  office  until  the  Spring 
Assizes  in  1836,  when  he  resigned  the  treasurership, 
having  previously  remos^ed  his  family  from  the  County 
of  Tyrone.  His  insolvency  was  not  doubted  or  denied ; 
and  the  182d  section  of  the  6  &  7  W.  IV.  c.  116,  ac- 
tually recited  his  insolvency,  and  enacted  that  by  reason 
thereof  the  Lords  of  the  treasury  were  authorized  to  lend 
to  the  County  the  £  8000  recovered  from  his  sureties. 

Previous  to  the  Spring  Assizes  in  1837,  the  govern- 
ment sent  down  the  following  certificate,  which  was 
laid  before  the  grand  jury,  and  upon  which  they  were 
required  to  present  the  sura  therein  appearing  due : 


(( 


■I     j 


I  I 


"  County  of  Tyrone. — Due  to  the  Crown,  upon  pre- 
"  sentments  passed  up  to  Spring  Assizes,  1835,  inclu- 
"  sive. 

"  Account  of  sums  advanced  out  of  consolidated  fund, 
"  under  the  provisions  of  the  Acts  specified  below : 

"  Constabulary,  3  G.  IV.  c.  103,     ...     £5489  9  9| 
"  Lunatic  Asylum,  (building,)  57  G.  III. 

"c.  106,  andl&2G.  IV.  c.  33,     ...          682  4  10 

"Do.  (Support,)      do.        do.          ...         1801  9  9i 

Forward     ...     £7973    4    5 


Tj 

coui 
ancel 


1837.]    PRESENTMENT,  DEFAULTING  TREASURER.  227* 

*  Brought  forward    ...     £7973    4  5 

"Boards  of  Health,  58  G.  III.  c.  47,  619  14  111 

"Valuation  of  lands,  7  G.  IV.  c.  62,  208     1  7 

"  Gaols  and  Bridewells,  50  G.  III.  c.  103; 

"7G.  IV.  c.  74,      2452     4  10 


Total, 

"  Deduct  paid  into  the  Exchequer  by 
"  Edward  Tierney  Esq.,  Crown  Soli- 
"citor,  as  recovered  from  the  late 
"Treasurer's  sureties,  on  7th  No- 
"vember,  1836,       


£11253     5    91 


8000     0     0 


Remains  due  to  the  crown, 


£3253     5     91 


"  I  hereby  certify  that  the  above  advances  were  made 
pursuant  to  the  Lord  Lieutenant's  directions,  as  herein 
particularized,  on  which  there  remains  to  be  presented 
the  sum  of  £3253  5s.  9|d,  which  has  been  included 
in  presentments  passed  by  the  Grand  Jury,  and  not 
paid;  and  as  this  amount  still  remains  due  to  the 
Crown,  the  Grand  Jury  are  hereby  required  to  present 
accordingly. 

"  Dubhn  Castle,  March  1,  1837. 

"T.  Drummond." 


'■\i 


l4  10 
I9     9| 

|4    5 


The  Grand  Jury  were  also  furnished  with  a  full  ac- 
count of  all  the  presentments,  on  foot  of  which  the  bal- 
ance remained  due;  but  after  full  discussion  they  in- 
36 


;li 


i 


I 


r 


I 


I 


\m 


< 


237 


JEBB'S    RESERVED  CASES. 


[Juno 


formed  Moore,  J.,  that  they  declined  making  the  pre- 
sentment, alleging  amongst  other  things  the  following 
reasons:  First,  That  the  sum  of  £3253  55.  did.,  claimed 
by  government  as  a  debt  due  by  the  late  Treasurer  of 
the  county,  to  His  Majesty's  Treasury,  was  a  sum  com- 
posed of  an  aggregate  of  balances,  said  to  have  accrued 
prior  to  the  year  1835,  and  that  it  was  manifest  there 
[*228]  had  been  great  remissness  on  *  the  part  of  the 
Crown  in  the  enforcement  of  their  claims  at  the  proper 
periods,  and  also  in  giving  receipts  to  Mr.  Galhraith, 
for  later  periods,  when  demands  upon  him  of  an  anterior 
date  were  unsatisfied.  Secondly,  that  the  Crown  had 
received  and  appropriated  to  its  own  exclusive  use  the 
sum  of  £  8000,  being  the  full  amount  for  which  the  late 
Treasurer  passed  his  securities.  Thirdly,  that  in  the 
account  furnished  to  them  by  the  Crown  Solicitor,  and 
which  by  the  certificate  they  were  required  to  present, 
they  discovered  an  error  to  the  amount  of  £  682  4*.  lOd., 
which  was  one  of  the  items;  and  that  they  had  no  doubt 
that  other  errors  would  be  discovered  on  further  exami- 
nation, and  comparison  of  vouchers.  The  Grand  Jury 
further  requested  permission  to  be  heard  by  counsel,  on 
the  construction  of  the  Statute  6  and  7  Wm.  IV.  c.  116, 
with  respect  to  the  authority  of  the  Judge  to  order  the 
presentment,  upon  the  refusal  of  the  Grand  Jury. 

Counsel  accordingly,  on  behalf  of  the  Grand  Jury, 
contended,  that  under  the  179th  section  of  the  statute, 
the  Judge  had  no  power  to  order  the  sum  claimed  to  be 


T 
ir  Ell 


183T.]   PRESENTMENT,   DEFAULTING  TREASITRER.    228 

levied,  inasmuch  as  the  several  sums  which  constituted 
the  aggregate  of  the  sum  claimed  liad  been  all  thcrcilo- 
fore  regularly  presented  by  the  Grand  Jury,  raised  oil' 
the  county,  and  paid  to  the  Treasurer;  and  that  that 
section  did  not  authorize  him  (the  Judge,)  to  present  or 
re-present  where  a  presentment  had  been  before  already 
made;  and  that  the  Judge's  authority  extended  no  fur- 
ther than  to  enable  him  to  make  the  order  where  no 
presentment  had  been  before  made.  That  he  had  not 
any  thing  to  do  with  the  payment,  but  merely  with  the 
presenting  of  the  money ;  and  that  it  appeared  from  the 
accounts  furnished  by  the  Crown,  that  in  every  instance 
the  several  instalments  had  been  actually  *■  there-  [*229] 
tofore  ordered  by  the  Judge  to  be  levied  whenever  the 
grand  jury  had  declined  to  present. 


Od., 
oubt 
:ami- 

ury 
on 

116, 

r  the 


It  was  further  urged,  that  the  179th  section  was  not 
in  any  case  imperative  upon  the  Judge,  but  left  him  a 
discretion ;  and  that  as  the  crown  had  suffered  the  Trea- 
surer to  incur  so  great  an  arrear  without  complaining 
to  the  grand  jury  or  giving  them  notice  of  his  default  of 
payment,  the  Judge  should  not,  in  exercising  a  sound 
discretion,  make  the  order  required ;  the  more  especially 
as  under  the  Statute  of  7  G.  IV.  c.  49,  s.  8,  the  Crown 
had  the  power  of  proceeding  against  the  Treasurer  for 
a  penalty  of  £50,  and  interest,  at  the  rate  of  six  per 
cent.,  in  case  he  neglected  to  pay  over  the  money  due  to 
government,  for  the  space  of  twenty-one  days  after  the 
commencement  of  each  assizes. 


S29 


JEBB'S  RESERVED  CASES. 


[June 


ij.^i 


With  respect  to  the  duty  of  the  Grand  Jury,  it  was 
insisted  that  they  were  not  bound  by  the  145th  section 
of  the  Act  to  present  for  any  sum  remaining  unpaid  by 
the  insolvency  of  the  Treasurer,  but  that  they  had  like- 
wise a  discretionary  power  either  to  do  so  or  refuse ;  for 
that  in  all  cases  where  it  was  made  imperative  on  the 
Grand  Jury  to  present,  the  words,  *'  and  they  are  hereby 
required,"  were  contained  in  the  enactment,  as  in  sec- 
tions 90,  93,  94,  182,  183,  of  the  same  Statute;  and  that 
even  supposing  it  were  imperative  on  them  to  present 
for  deficiencies,  they  should  present  for  the  entire  and 
not  merely  for  a  portion  of  the  sum  deficient;  and  that 
there  was  an  error  in  the  account  furnished,  to  the 
amount  of  £682  45.  lOd.,  for  which  credit  had  been 
omitted  in  the  certificate. 

On  behalf  of  the  Crown  it  was  contended,  that  it  was 
[*230]  *  the  duty  of  the  Grand  Jury  to  examine  the 
Treasurer's  account  at  each  assizes,  and  to  require  him 
to  produce  his  receipts  and  vouchers  for  his  payments; 
and  if  this  had  been  done,  and  the  Grand  Jury  had  done 
their  duty,  no  default  could  have  arisen ;  whereas  it  did 
not  appear  that  the  Grand  Jury  ever  regularly  examined 
or  checked  any  account  of  their  Treasurer.  It  was  also 
urged  that  the  179th  section  of  the  Statute  was  impera- 
tive upon  the  Grand  Jury  to  present  the  deficiency  as 
certified;  and  in  default  of  their  doing  so,  upon  the 
Judge  to  order  the  amount  to  be  levied. 


iii  '^ 
III 


1838.]    PRESENTMENT,  DEFAULTING  COLLECTOR.    230 

The  learned  Judge  reserved  the  questions  upon  the 
construction  of  the  statute,  and  particularly  of  the  179th 
section,  with  reference  to  the  preceding  state  of  facts, 
for  the  consideration  of  the  Judges. 

The  Judges  {Biishe,  C.  J.,  being  absent,  Richards,  B., 
dissentiente)  were  of  opinion  that  the  Grand  Jury  were 
not  bound  at  the  instance  of  the  Crown  to  make  pre- 
sentments for  the  deficiencies  of  the  insolvent  Treasurer 
in  any  of  the  instances  mentioned  in  this  case;  and  that 
the  Judge,  upon  their  refusal  to  make  the  required  pre- 
sentment, was  not,  under  the  179th  section  of  the  Sta 
tute,  bound  to  order  the  sums  to  be  levied,  as  if  presented. 
An  opinion  was  also  generally  expressed  (though  no 
decision  upon  the  point  was  pronounced,)  that  the 
Crown  was  not  within  the  145th  section. 


IN  the  Matter  of  a  Presentment  to  repay  the  TREA-  [*231] 
SURER  of   the    QUEEN'S   COUNTY    sums   due   by   a 
COLLECTOR. 


defaulting 


A  collector  of  grand  jury  cess  having  proved  a  defaulter,  the  grand  jury  sued 
the  treasurer  in  the  Court  of  Exchequer,  wliere  the  Court  gave  judgment  for  tho 
defendant,  holding  that  it  was  the  duty  of  the  grand  jury,  and  not  of  the  trea- 
surer,  to  take  care  that  the  collector  should  give  sufficient  security.  The  grand 
jury  aflerwards  made  a  presentment  for  the  deficient  sum,  to  be  levied  off  the 
county,  and  paid  to  the  treasurer,  he  having  debited  himself  conditionally  with 
that  amount.    Held,  Uiat  the  presentment  was  legal. 

A  SCIRE  FACIAS  had  issued  on  a  recognizance  entered 
into  by  W.  Kemmis  Esq.,  on  the  2d  of  Dec'r.  1823,  as 


8S1 


JEBD'S    RESERVED   CASES. 


Ml': 


[February 

Treasurer  of  the  Queen's  County,  in  the  sum  of  £3000, 
conditioned  for  the  faithful  discharge  of  the  duties 
of  the  oirice  of  Treasurer.  The  defendant  {Kemmis) 
pleaded  general  performance,  and  the  plaintiff  by  his 
replication  assigned  four  breaches,  which  in  substance 
were,  that  the  defendant,  as  such  Treasurer,  issued  his 
warrant  to  one  Philip  Hurley,  to  levy  a  sum  of  £712 
85.  b\d,  presented  by  the  Grand  Jury  of  said  county, 
to  be  raised  off  the  barony  of  Ballt/adams,  although  the 
said  Hurley  was  not  duly  authorized  as  High  Constable 
or  Collector  for  said  barony  to  levy  or  collect  said  sum, 
or  to  act  as  such  High  Constable  or  Collector  in  that 
behalf,  and  had  not  to  the  knowledge  of  the  defendant, 
given  the  security  in  that  behalf  required  by  the  statute ; 
and  that  although  it  was  the  duty  of  the  Treasurer  not 
to  issue  his  warrant  to  any  person  not  duly  authorized, 
and  who  had  not  given  such  security,  yet  he  issued  his 
warrant  to  the  said  Philip  Hurley,  well  knowing  that  at 
the  time  of  the  issuing  thereof,  or  at  any  time  afterwards, 
the  said  Philip  Hurley  was  not  duly  authorized  to  act  as 
High  Constable  or  Collector  for  said  barony,  and  had 
not  entered  into  the  proper  security.  There  was  then 
an  averment  that  Hurley  levied  said  sum,  and  absconded 
with  it,  whereby  it  was  wholly  lost.  The  defendant 
filed  a  rejoinder  to  each  breach,  stating  in  substance 
that  the  Grand  Jury  had  not  appointed  any  collector ; 
that  Hurley  was  High  Constable  of  the  barony;  that 
[*232]  defendant  issued  his  warrant  to  *  him  as  such, 


1838.]    PRESENTMENT,  DEFAULTING  COLLECTOR.    233 

by  which  he  was  authorized  to  levy  said  sum,  and  did 
levy  same  as  he  ought  and  lawfully  mijjht  do. 


The  plaintiff  demurred  to  each  rejoinder,  assigning 
for  causes:  First,  that  the  rejoinder  did  not  shew  that 
Hurley  had  entered  into  the  security  required  by  the 
Statute  to  authorize  him  to  collect.  Secondly,  that  the 
rejoinder  averred  that  Hurley  was  authorized  by  the 
Treasurer's  warrant  to  collect,  whereas  in  point  of  law 
he  was  not  authorized  to  collect,  unless  he  entered  into 
such  security.  Thirdly,  that  the  defendant  wrvs  not 
warranted  in  the  due  discharge  of  his  duty  as  Trea- 
surer, to  issue  his  warrant  to  Hurley,  until  or  unless  he 
had  entered  into  such  security.  Fourthly,  that  the 
rejoinder  did  not  traverse  or  deny  that  at  the  time 
defendant  issued  his  warrant  to  Hurley,  or  at  any  time 
afterwards,  he,  the  defendant,  knew  or  had  notice  that 
Hurley  was  not  authorized  to  ccllect  or  had  not  entered 
into  such  security.  Fifthly,  that  it  was  not  shewn  by 
said  rejoinder  that  before  defendant  issued  his  warrant, 
he  caused  Hurley  to  execute  a  bond  and  warrant  to  him 
as  Treasurer,  pursuant  to  the  Statute,  or  enquired  or 
ascertained  whether  he  had  executed  such  bond. 
Sixthly,  that  the  rejoinder  did  not  tender  any  certain 
or  material  issue  in  fact. 

This  demurrer  (the  question  raised  by  which  chiefly 
turned  upon  the  36  G.  III.  c.  55,  ss.  48,  49,  50,  52,  and 
the  49  G.  III.  c.  84,  ss.  24  &  15,)  came  on  to  be  argued 


. ; .  I 


S39 


JEDD'S   RESERVED   CASES. 


[February 


before  the  Barons  of  the  Exchequer,  in  Easter  Term, 
1837,  when  the  Court,  after  hearing  counsel  on  behalf 
of  the  Grand  Jury  and  the  Treasurer,  gave  judgment 
for  the  defendant,  stating  that  in  their  opinion  it  was 
the  duty  of  the  Grand  Jury  to  take  care  that  sufficient 
[*233]  security  *was  entered  into  by  the  collector 
before  them,  and  that  not  having  done  so,  it  was  by 
their  default  and  not  that  of  the  Treasurer,  that  the  loss 
had  been  sustained. 


The  proceedings  on  the  scire  facias  had  been  taken 
in  consequence  of  an  order  made  at  the  Summer  As- 
sizes in  1834,  by  Johnson^  J.,  with  the  view  of  having  the 
disputed  question  between  the  Grand  Jury  and  the 
Treasurer,  as  to  the  liability  of  the  Treasurer  or  the 
county  for  the  loss  sustained  by  Hurki/s  default,  de- 
cided by  such  legal  proceeding  against  the  Treasurer  as 
the  Grand  Jury  should  be  advised  to  take.  And  at  the 
Summer  Assizes  in  1837,  the  Grand  Jury  being  ap- 
prized of  the  decision  of  the  Court  of  Exchequer,  made 
a  presentment  for  the  sum  of  £661  125.  6d.  to  be  levied 
off  the  county,  to  reimburse  the  Treasurer,  who  had 
debited  himself  conditionally  with  that  sum,  and  syb- 
mitted  it  to  Moore,  J.,  (the  Judge  of  Assize,)  to  fiat,  if, 
in  his  judgment,  the  county  was  then  to  be  charged 
■with  it.  The  learned  Judge  observing  some  difference 
of  opinion  on  the  subject,  respited  the  presentment  for 
the  consideration  of  the  Judges;  the  question  reserved 
being,  whether  the  judgment  on  the  demurrer  was  con- 


I 


1 


1838.] 


DECISIONS  ON   RESERVED  CASES. 


933 


elusive  as  to  the  non-liability  of  the  Treasurer,  and 
whether  the  Grand  Jury  had  then  the  power  under  the 
145th  section  of  tlie  G  and  7  Wm.  IV.  c.  IIG,  to  present 
the  said  sum  of  £001  Vis.  Cul.  to  be  raised  off  the  county, 
to  reimburse  the  Treasurer  the  sum  for  which  he  had 
debited  himself  for  the  default  of  Vhilip  Unrleij. 


Ten  Judges  {Joy,  C.  B.,  and  Pennefafher,  B.,  being 
absent,)  unanimously  ruled  that  the  presentment  should 
be  fiated,  provided  the  Crown  should  disclaim  ulterior 
proceedings  in  the  Exchequer. 


IN  the  Matter  of  Decisions  upon  RESERVED  CASES.  [»231] 


the 
ap- 
nade 
vied 
had 
syb- 
at,  if, 
rged 
•ence 
tfor 
rved 
con- 


\ 


Held,  tliat  tlio  opinion  of  tlio  majority  of  tho  Judges  upon  cases  reserved  from 
circuit  is  binding  upon  tiio  individual  Judges,  wliatcvor  tlieir  own  opinion 
muy  be. 


In  consequence  of  a  doubt  which  had  been  raised  as  to 
the  extent  to  which  an  individual  Judge,  upon  circuit, 
ought  to  consider  himself  bound  by  the  opinion  and 
decision  of  the  majority  of  the  Twelve  Judges  upon 
questions  reserved  from  circuit  for  their  consideration 
in  the  Queen's  Bench  Chamber;  it  was  resolved  at  a 
meeting  of  the  Judges,  on  the  11th  of  February,  1838, 
that  the  English  practice  upon  this  subject  should  be 
ascertained,  and  for  this  purpose  Btishe,  C.  J.,  wrote  to 
37 


Wit 


|M 


S34 


JEBB'S   RESERVED   CASES. 


[April  30 


Lord  Denman,  C.  J.,  making  the  necessary  inquiries. 
The  answer  of  Lord  Denman  was  as  follows : 


"  London,  Feb.  13,  1S38. 
My  Lord, 

"  I  am  lionoured  with  your  lordship's  letter,  inquiring 
whether  the  Judges  of  Eiujland,  on  their  circuits,  hold 
themselves  bound  by  the  opinion  of  the  whole  body 
of  the  Judges,  on  Crown  cases  reserved;  and  I  have 
no  difficulty  in  stating,  that  each  of  us  does  hold  him- 
self so  bound,  whether  or  not  his  own  opinion  may 
have  agreed  with  that  of  the  majority,  and  whether 
or  not  the  case  may  have  been  argued  by  counsel. 
"  I  have  the  honor  to  be, 
"  Your  lordship's  faithful  servant, 
"  Denman. 
Rt.  Hon.  the  Lord  Chief  Justice 
of  Ireland.''^ 


Copies  of  this  correspondence  having  been  furnished 
to  the  other  Judges,  a  second  meeting  took  place  upon 
[*235]  the  *  30th  of  April,  1838,  when  the  question  was 
proposed,  "  whether  each  of  the  Twelve  Judges  of  Ire- 
"  land  ought  to  hold  himself  bound  by  the  opinion  of  the 
"  majority  of  the  Judges,  upon  cases  reserved  from  cir- 
"  cuit,  whether  his  own  opinion  agreed  with  the  majority 
"or  not?" 


!i:H 


All  the  Judges  were  present,  and  gave  their  opinions 
seriatim.     Ten  of  them  (Bushe,  C.  J.,  Doherty,  C.  J. 


"l! 


1838.]    PRESENTMENT,   GOVERNMENT    ADVANCES.    23.'> 

C.  Pleas,  Joy,  C.  B.,  Moore,  J.,  Jotinson,  J.,  Burton, 
J.,  Pexnefatiier,  B.,  Torrens,  J.,  Foster,  B.,  and 
Crampton,  J.,)  resolved  the  question  in  the  affirmative. 
Perrin,  J.,  and  Richards,  B.,  held,  that  it  should  be 
answered  in  the  negative  [a). 


(a)  For  the  circumstances  which  led  to  this  discnssion,  and  the  letter  of  liiiuhe, 
C  J.,  see  "Alcock's  ubscrviitions  on  tlie  nature  and  origin  of  the  mcctinjfs  of  tlio 
Twelve  Judges,"  pp.  1—4.    (See  ante,  p.  1.) 


lajority 


Ipinions 
r,  C.  J. 


IN  the  Matter  of  an  Application  for  PRESENTMENTS  for 
an  Arrear  of  £358  10s.  5d.  due  by  the  QUEEN'S  COUNTY 
to  the  Government  for  Advances  to  BOARDS  OF  HEALTH 
in  the  Years  1819  &  1820. 

An  application  having  been  made  by  direction  of  the  Lord  Lieutenant  to  a  grand 
jury  to  present  the  amount  of  arrears  due  to  government  19  years  before,  for 
advances  made  by  government  for  a  Board  of  licaith;  and  the  grand  jury  having 
refused,  on  account  of  the  length  of  time  which  had  elapsed:  Held,  timt  the 
Judge  of  Assize  was  authorized  to  make  an  order  for  the  amount,  under  s.  179 
oftlie6&7\V.  4,0.116. 

At  the  Spring  Assizes  for  the  Queen's  County,  in  1S38, 
an  application  was  made  to  the  Grand  Jury,  by  direc- 
tion of  the  Lord  Lieutenant,  to  present  for  the  sum  of 
£353  105.  5d.  being,  as  was  stated,  an  arrear  of  advances 
made  by  the  government  in  the  years  1819  &  1820,  for 
a  Board  of  Health  for  the  barony  of  Po)'tnahinch  in  thnt 
county,  for  fever  *  hospital  purposes  (a).    That  [*236j 

(a)  Under  the  58  G.  3,  c.  47. 


1; 


;!',( 


A 


^ii   i 


SS!I 


23G 


■JEBB'S   RESERVED   CASES. 


[June  13 


sum  was  admitted  by  the  Grand  Jury  to  be  due,  but 
the  application  having  been  refused  on  the  ground  that 
it  would  be  a  hardship  on  the  present  landholders,  &c. 
to  be  called  upon  after  a  lapse  of  nearly  twenty  years, 
to  contribute  to  the  payment  of  a  sum  which  might 
long  since  have  been  paid,  but  for  the  negligence  of  the 
government  in  not  making  application  for  the  present- 
ment at  a  proper  time;  Tickell  applied  to  the  Court 
under  the  6  &  7  W.  IV.  c.  116,  s.  179,  to  make  an  order 
in  lieu  of  a  presentment,  on  the  following  grounds : — 
1st,  The  refusal  of  the  Grand  Jury  to  present:  2dly, 
On  proof  of  the  appointment  by  the  Lord  Lieutenant, 
upon  the  22d  July,  1818,  of  the  Board  of  Health  for  the 
barony  oi  Portnahinch ;  3dly,  On  proof  of  the  advances 
made  to  the  treasurer  of  the  Board  of  Health,  by  pro- 
duction of  his  books,  and  a  certified  copy  of  a  power  of 
attorney  from  him  to  one  Ridgervay,  dated  the  25th 
Nov.  1818,  to  receive  advances  from  the  treasury  for 
the  Board  of  Health,  and  a  certified  copy  of  the  Lord 
Lieutenant's  warrant  to  the  treasury,  dated  19th  May, 
1319,  directing  the  issue  of  a  sum  of  £60,  on  account 
of  the  Board  of  Health,  with  Riclgervai/s  receipt  for  that 
sum :  and  4thly,  The  Under  Secretary's  certificate  of 
the  sums  advanced  for  the  Board  of  Health,  certifying 
that  those  advances  had  never  been  repaid,  and  that  the 
foregoing  sum  still  remained  due  to  the  Crown,  and 
requiring  the  Grand  Jury  to  present  for  it,  under  the  6 
&7  W.  IV.  c.  116,  s.  179. 


1838.]    PRESENTMENT,   GOVERNMENT    ADVANCES.    23G 


After  hearing  Tickell  and  several  of  the  Grand  Jury 
upon  the  question,  Johnson,  J.,  directed  an  order  to  be 
put  upon  *  the  crown-book,  requiring  the  sum  [*237] 
in  question  to  be  raised  oflF  the  county  at  large,  but  at 
the  same  time  respiting  the  levy,  until  the  learned 
Judge  should  have  an  opportunity  of  conferring  with 
the  Twelve  Judges  on  the  subject.  The  order  was  as 
follows: — "Queen's  County,  Lent  Assizes,  1838.  It  is 
"ordered  by  the  Court,  on  motion  of  Mr.  Tickell  of 
"  counsel  for  the  Crown,  that  the  sum  of  £  353  IO5.  56?. 
"  be  raised  off  the  county  at  large,  and  paid  to  the  Trea- 
"  surer,  and  by  him  paid  over  to  the  government,  to 
"  reimburse  them  for  advances  made  on  account  of  the 
"  Board  of  Health  for  fever  hospital  purposes,  for  the 
"  barony  of  Por^wa/imc/i,  in  the  years  1819  &  1820. — 
"  Respited  by  the  Court,  for  the  opinion  of  the  Twelve 
"  Judges." 

The  appointment,  by  the  Lord  Lieutenant,  of  the 
Board  of  Health  was  in  the  following  terms : — 


ill 


I 


! 


II 


"By  the  Lord  Lieutenant  General  and  General 
Governor  of  Ireland. 

''Talbot. 

"Whereas,  by  an  Act  passed  in  the  58th  year  of  his 
"  Majesty's  reign  (a),  entitled  'An  Act  to  establish  fever 


(o)  c.  47. 


937 


JEBB'S   RESERVED  CASES. 


[June  13 


1  • 


I  ill 


i|       i^ 


f'k 


M 


'"hospitals,  and  to  make  other  regulations  for  the  relief 
"'of  suffering  poor,  and  for  preventing  the  increase  of 
"  'infectious  fevers  in  Ireland,'  it  is  enacted,  that  vvhen- 
•*  ever  in  any  city,  town,  or  district,  any  fever  or  conta- 
"gious  di  temper  shall  appear,  or  be  known  to  exist 
"amongst  the  poor  inhabitants,  it  shall  and  may  be 
"  lawful  for  any  one  or  more  magistrates,  upon  the  re- 
"  quisition  of  five  respectable  householders,  to  convene 
"  [*238]  a  *  meeting  of  the  magistrates  and'  house- 
"  holders  of  such  city,  town  or  district,  and  of  the 
"medical  practitioners  within  the  same,  in  order  to 
"  examine  into  the  circumstances  attending  such  fever 
"  or  contagious  distemper,  and  the  number  of  persons  or 
"  families  being  sufferers  thereby ;  and  if  it  shall  be  the 
"  opinion  of  such  meeting,  and  of  one  or  more  magistrates 
"  attending,  that  such  fever  or  contagious  distemper  is 
"  of  a  nature  to  require  particular  attention  and  circum- 
"spection,  to  prevent  the  increase  of  the  contagion 
"  thereof,  it  shall  be  lawful  for  two  or  more  magistrates 
"  authorized  by  such  meeting  to  join  in  an  application 
"  to  the  Lord  Lie'itenant,  or  other  Governor  or  Govern- 
"  ors  of  Ireland,  for  the  time  being,  to  appoint  a  Board 
"  of  Fsalth  within  and  for  such  city,  town,  or  district, 
"  and  that  it  shall  be  lawful  for  such  Lord  Lieutenant, 
"  or  other  Chief  Governor  or  Governors  of  Ireland,  to 
"  appoint  such  board  accordingly,  to  consist  of  not  more 
"  than  thirteen  commissioners,  to  be  selected  from  among 
"  the  Governors  or  members  of  the  Corporation  of  any 
"Infirmary  or  Fever  Hospital,  or  other  hospital,  and 


(J 

tneiJ 


■^1 


ne 


13 


3Uef 

56  of 

hen- 

jtita- 

exist 

y  be 

aere- 

avene 

louse- 

af  the 

der  to 

1  fever 

sons  or 

.  be  the 

;istrates 

|mper  is 

circutn- 

(ntagion 

Tistrates 
ication. 
Govern- 
a  Board 
district, 
utenant, 
eland,  to 
not  more 
m  among 
)n  of  any 
ital,  and 


1838.]    PRESENTMENT,   GOVERNMENT   ADVANCES.    238 

"  from  the  parishioners  and  medical  practitioners,  to  act 
**  within  such  city,  town,  or  district,  in  such  manner 
"  and  under  such  regulations  as  such  Lord  Lieutenant 
"  or  other  Chief  Governor  or  Governors  of  Ireland,  or 
"  his  or  their  Chief  Secretary  shall  from  time  to  time 
"  order,  direct,  and  appoint.  And  whereas  a  meeting  of 
"the  magistrates  and  householders  of  the  barony  of 
"  Portnahinch,  in  the  Queen's  County,  and  of  the  medi- 
"  cal  practitioners  within  the  same,  has  been  convened 
"  to  enquire  into  the  circumstances  attending  a  fever  or 
"  contagious  distemper  which  has  appeared  among  the 
**  poor  inhabitants  thereof;  and  it  is  the  opinion  of  the 
"said  meeting,  that  the  said  fever  or  contagious  dis- 
"  temper  is  of  a  nature  to  require  particular  attention 
"  and  circumspection,  *  to  prevent  the  increase  [*239] 
"  of  the  contagion  thereof,  they  have  authorized  Matthew 

^^  Anke'ell,  Esq.,  and ,  magistrates  of  the 

"  said  county,  to  make  application  to  us,  to  appoint  a 
"  Board  of  Health  within  and  for  the  said  barony  of 
"  Portnahinch,  in  the  Queen's  County :  We  do  therefore, 
"  in  pursuance  of  the  power  vested  in  us,  as  aforesaid, 
"  hereby  appoint  the  following  persons  to  be  a  Board  of 
"  Health  for  the  said  barony  of  Portnahinch,  in  the  said 
"  Queen's  County,  accordingly,  viz.  &,c. 

"July  22d,  1818." 

Eleven  Judges  decided  unanimously  in  favour  of 
the  order  (a). 

(a)  See  s.  180  of  the  6  &.  7  W.  4,  c.  116,  creating  a  limit  of  fivo  years  for  pay. 
ment  of  future  advances. 


u 


m 


JEBB'S   RESERVED   CASES. 


[November 


IN  the  Matter  of  a  Presentment  against  tlie  Senesclial  of  a 
MANOR  COURT,  County  ANTRIM. 


Held,  that  a  scncsclial  of  a  manor  eotirt,  witliin  tlio  jurisdiction  of  which  there  was 
no  local  prison,  was  not  lialilc  undrr  tlio  7  O.  J,  c.  74,  ».  9!),  to  pay  for  the  sup. 
port  of  prisoners  in  the  county  gaol  under  execution  from  the  manor  court;  the 
senesclial  not  being'  able  'o  refuse  executions,  nor  paid  by  fees  upon  them,  iior 
ul  lowed  to  direct  the  process  to  any  one  except  the  permanent  bailiffs,  who  toere 
■o  paid. 


i'r 


At  the  Summer  Assizes  for  the  County  oi  Antrim,  in 
1838,  the  Grand  Jury  presented,  under  the  7  G.  IV. 
c.  74,  s.  99,  that  Arthur  Gamble,  Seneschal  of  the 

Manor  of should  pay  to  the  proper  officer  for  the 

County  of  Antrim  £  8,  being  the  amount  due  for  sup- 
porting certain  prisoners  in  the  County  Gao],  who  had 
been  taken  in  execution  within  the  local  jurisdiction  and 
transferred  to  the  County  Gaol  under  the  96th  section. 
The  Marquis  of  Donegal  was  the  lord  of  the  manor, 
Arthur  Gamble  was  the  seneschal,  and  there  were  three 
bailiffs,  permanent  officers. — The  bailiffs  received  fees  on 
[*240]  executions. — The  seneschal  was  not  at  *  hberty 
to  refuse  execution  against  the  body,  and  had  no  juris- 
diction to  direct  the  process  to  any  one  except  to  these 
officers.  The  seneschal  opposed  the  fiating  of  this  pre- 
sentment, complaining  of  the  extreme  hardship  of  being 
called  on  to  pay  out  of  his  own  pocket  for  these  ex- 
penses. He  had  no  fee  upon  executions.  There  never 
was  any  local  prison  witliin  this  jurisdiction,  so  that  no 


At 


in 


1838.] 


REGINA  J).   DONAGHER. 


S40 


reference  could  be  made  to  any  practice  antecedent  to 
the  7  G.  IV.  with  respect  to  the  mode  of  maintaining 
prisoners,  for  the  purpose  of  affording  any  illustration 
upon  the  question. 

Under  these  circumstances,  Foster,  B.,  (the  Judge  of 
Assize)  reserved  for  the  opinion  of  the  iJudges  the  fol- 
lowing questions — 1st:  Whether  the  presentment  ought 
to  be  fiated  ? — 2dly :  In  case  it  ought  not,  in  what  man- 
ner, if  any,  was  the  county  to  be  paid? 

The  Judges  unanimously  decided  against  the  pre- 
sentment upon  the  first  question;  but  did  not  consider 
themselves  called  upon  to  give  any  opinion  upon  the 
abstract  question  proposed  by  ^^e  second. 


'  being 
3se  ex- 
never 
that  no 


THE  QUEEN  v.  FRANCIS  DONAGHER.     [*241] 

On  the  trial  of  an  indictment  for  forginjjf  an  aceountabic  receipt,  it  appeared  tliat 
notice  was  served  tm  tliu  2Gtli  of  October,  on  tlie  prisoner,  to  produce  the  docu- 
ment; the  commission  opened  the  fi)llo\ving  day,  but  tlic  trial  did  not  take  place 
until  Nov.  2;  and  the  receipt  not  being  produced,  a  witness  proved  that  the  pri- 
Boner,  witii  wiiosc  family  he  had  been  acquainted,  had  handed  iiini  the  docu- 
ir.ent,  and  requested  him  to  institute  |)rocccdings  upon  it;  this  the  witness  refused 
to  do,  but  kept  the  document,  and  delivered  it  to  a  third  person  to  be  shown  to 
the  party  whose  name  was  forged;  after  which  the  witness  returned  it  to  tlio 
prisoner.  Tlie  prisoner  being  convicted,  Htld,  thai  the  conviction  was  wrong, 
on  the  ground  that  the  communication  between  the  witness  and  tlio  defendant 
was  privileged.    Seinble,  that  the  notice  was  suflieient. 

At  the  sitting  of  the  Commission  for  the  City  of  Dahlin, 
in  October,  1838,  the  prisoner  was  tried  before  Moore,  J., 
38 


341 


JEBD'S   RESERVED  CASES. 


[Mcceinbcr  4 


II 


.III: 


on  an  indictment  for  forging  an  accountable  receipt  in 
these  words:  "I  acknowledge  to  have  received  from 
^^  Francis  Donagher,  the  sum  of  one  hundred  and 
"  thirty  pounds,  for  which  I  promise  to  be  accountable. 
'^Richard  GriJJith.'^  The  instrument  not  having  been 
produced,  after  evidence  had  been  given  that  the  pri- 
soner had  demanded  the  amount  from  Mr.  Griffith,  both 
verbally  and  by  a  letter,  which  was  proved  by  Mr. 
Grijfiih  to  have  been  in  the  prisoner's  handwriting,  a 
notice  was  proved  to  have  been  served  on  the  26th  of 
October  upon  the  prisoner,  who  was  then  in  Newgate, 
and  a  siibpoBna  duces  tecum  on  Mr.  Croher,  his  attorney, 
to  produce  it  on  the  trial.  It  was  objected,  that  this 
notice  was  not  given  in  sufficient  time  before  the  open- 
ing of  the  Commission  (which  took  place  on  the  27th) 
to  lay  a  foundation  for  letting  in  secondary  evidence, 
but  as  the  trial  did  not  take  place  until  the  2d  of  No- 
vember, the  Court  held  there  was  reasonable  time  given 
by  the  notice  to  produce  the  document,  and  overruled 
the  objection. 


i  iji! 


I,'  ;? 


Mr.  Henry  Major,  an  attorney,  was  then  examined : 
he  said,  that  about  the  12th  of  June,  1838,  the  prisoner, 
with  whose  family  he  had  some  acquaintance,  handed 
him  the  document,  and  requested  of  him  to  institute 
[*242]  proceedings  *  against  Mr.  Griffith  upon  foot  of 
it.  Witness  refused  to  be  concerned  for  the  prisoner; 
the  prisoner  left  the  document  with  witness,  who  after- 
wards delivered  it  to  Mr.  Lawler  to  be  shown  to  Mr. 


■«ll 


1839.] 


REGINA   t).    DONAOIIEH. 


242 


Griffith,  in  order  to  inquire  as  to  the  genuineness  of  the 
document.  A  day  or  two  after  this  the  prisoner  again 
applied  to  witness,  and  pressed  him  to  be  his  attorney; 
but  witness  declined,  in  consequence  of  something 
•which  had  occurred ;  he  did  not  in  any  manner  act  or 
undertake  to  be  his  attorney,  but  having  got  the  docu- 
ment from  the  prisoner,  he  returned  it  to  him.  On  cross- 
examination,  the  witness  said  he  had  no  doubt  the  pri- 
soner had  come  to  him  with  a  view  to  engajje  him  as 
his  attorney,  but  he  gave  him  no  instructions,  neither 
had  he  any  communication  with  him  about  sending  the 
document  to  be  shown  to  Mr.  Griffith,  that  being  wit- 
ness's own  act. 


1        %: 


M 


ined: 
isoner, 
landed 
istitute 

foot  of 
isoner ; 
o  after- 

to  Mr. 


Thomas  Henry  Larvler  was  then  examined,  who  said, 
that  he  showed  the  document  which  he  had  received 
from  Mr.  Major  to  Mr.  Griffith. 

To  the  admissibility  of  this  evidence,  two  objections 
were  taken :  1st,  That  Mr.  Major  should  not  be  permit- 
ted to  give  evidence  /especting  a  document  which  had 
come  into  his  hands  in  the  manner  above  stated :  2dly, 
That  the  communication  from  Mr.  Larvler  to  Mr.  Grif- 
fith, when  he  produced  to  him  the  document  in  ques- 
tion, took  place  without  the  authority  of  the  prisoner, 
and  was  a  violation  of  j professional  confidence.  The 
Court  overruled  these  objections,  and  the  case  having 
gone  to  the  jury  upon  the  foregoing  and  other  evidence, 
they  found  the  prisoner  guilty. 


\i 


li 
'i 


I 


I 


I. 


1':^ 


343 


JEDD'S   RESERVED   CASEH. 


[December  4 


The  learned  Judge  respited  the  sentence,  for  the  pur- 
pose of  obtaining  the  opinion  of  the  Twelve  Judges  on 
[*'243]  the  *  following  ([ucstions:  first,  whether  there 
was  sufficient  notice  given  to  produce  the  instrument, 
so  as  to  let  in  secondary  evidence  of  its  contents;  and 
secondly,  whether  under  all  the  circumstances  before 
stated,  what  took  place  between  the  prisoner  and  Mr. 
Major  was  to  be  considered  as  a  privileged  communica- 
tion as  between  client  and  attorney,  and  the  communi- 
cation between  Mr.  Lawler  and  Mr.  Grijfith  a  breach 
of  professional  confidence. 

Ten  Judges  having  met,  (Doherttj,  C.  J.  C.  Pleas,  and 
Richards,  B.,  being  absent,)  seven  of  them  (Woulfe, 
e.  B.,  Johnson,  J.,  Burton,  J.,  Pennefatiier,  B.,  Tor- 
RENS,  J.,  P'osTER,  B.,  and  Perrin,  J.,)  were  of  opinion 
that  the  conviction  was  wrong,  on  the  ground  that  what 
had  taken  place  between  the  prisoner  and  Mr.  Major 
was  a  privileged  communication.  The  remaining  three 
(Busi'iE,  C.  J.,  Moore,  J.,  and  Crampton,  J.,)  were  of  a 
contrary  opinion. 


<<  i 


1    J  I,;.  ^ 


^1 


183!).] 


REGINA   V.   FLANNERY. 


343 


THE  QUEEN  v,  EDWARD  FLANNERY. 

An  indictment  charj^in^  tliat  the  prisoner  did  "  by  threats  nnd  inenuccB  threaten 
violence  to  the  person  of  one  J,  (!.,  in  tlie  event  of  liin  not  taking  back  into  liiH 
employment  a  certain  mon  whom  he  liad  tlien  lately  before  diHchar^rcri  from  bin 
cervice,"  Ih  bad.  Such  an  indictment,  suppoKin);  it  were  good,  is  not  nupported 
by  evidence  tliat  .T,  G.  was  agent  to  another  ])erson,  and  hired  servuiitH  to  bo 
employed  about  the  work  of  that  person,  wiiieli  J.  G.  superintended;  and  that 
the  discharge  of  one  of  tiiesc  servants  was  tlic  occasion  of  tho  threats  stated  in 
the  indictment. 


The  prisoner  was  tried  and  found  guilty  at  the  Clonmel 
Summer  Assizes,  in  1837,  before  Crampton,  J.,  upon 
the  following  indictment: — "The  Jurors  of  our  lady 
"  the  Queen  upon  their  oath  do  say  and  present,  that 
"  Edward  Flannertj,  late  of  Boher,  in  the  Co.  of  Tippe- 
"  rary,  yeoman,  on  the  19th  of  May,  1  Vict.,  with  force 
"  and  arms,  &c.,  at,  &c.,  in  the  said  county,  did  then 
"and  there  wilfully,  maliciously,  unlawfully,  and  by 
"  threats  and  menaces,  threaten  violence  *  to  the  [*244] 
"  person  of  one  James  Goiilding,  a  subject  of  our  said 
lady  the  Queen,  in  the  event  of  him  the  said  James 
"  Goidding  not  taking  back  into  his  employment  a  cer- 
"  tain  man  whom  he  the  said  James  Goidding  had  then 
"  lately  before  discharged  from  his  service,  in  contempt 
"  of  our  said  lady  the  Queen  and  her  laws,  against  the 
"  peace  of  our  said  lady  the  Queen,  her  crown  and 
"  dignity,  and  against  the  form  of  the  statute  in  that 
"  case  made  and  provided."  (a) 

(a)  Semhle,  the  Whiteboy  Act,  1.5  &  16  G.  3,  c.  21,  s.  3. 


<< 


4 


vm 

Iff 


944 


JERira   REMRRVI'.n  (;A8ES. 


[January  Hi 


* 

Part  of  tho  cvidcnco  was,  tlmt  Jronrs  Coulding,  tho 
prosecutor,  \\as  an  agent  to  Mr.  Bourne,  a  coacli  owner, 
and  resided  at  Kilniastulla,  where  Mr.  Bourne  had  sta- 
bles and  liorses;  that  Mr.  Gouhling  had  the  care  of 
these  stables  and  horses,  and  hired  and  discharged  tho 
servants  who  were  employed  about  them,  and  that  he 
had  lately  discluu-gcd  a  stable-man  named  Houragan, 
who  had  been  employed  in  tho  stables  at  Kilmastulla. 
The  charge  was  in  other  respects  abundantly  sustained 
by  the  evidence;  but  it  was  objected  by  Rolhston,  the 
prisoner's  counsel,  1st,  That  the  indictment  was  insuffi- 
cient in  law :  and  2dly,  that  the  proof  varied  from  the 
charge,  inasmuch  as  the  employment  from  which  Ilou- 
ragan  had  been  discharged,  was  shewn  to  be  that  of 
Bourne,  and  not  of  Goulding,  as  stated  by  the  indict- 
ment. 

Ten  Judges  [Burton,  J.,  and  Perrin,  J.,  being  absent) 
unanimously  held  that  the  indictment  was  bad.  The 
majority  also  were  of  opinion  that  the  evidence  was 
insufficient. 


n 


[*245]  THE  QUEEN  v.  WILLIAM  BARRAN  and  JOHN 

MURPHY. 

An  indictment  for  stealing  sheep  is  BU|)portcd  by  evidence  of  stealing   ewes. 

At  the  Spring  Assizes  for  the  Northern  Riding  of  the 
County  of   Tipperary,  in  1839,   at  Nenagh,   William 


183!).] 


REfilNA   t>.   liARRAN. 


SI.1 


Uiirran  and  John  Murphy  wcro  tried  and  found  guilty 
before  liiishc,  C.  J.,  upon  the  following  indictment; — 
"County  of  Tipperary,  North  Hiding,  to  wit. — The 
"jurors  for  our  lady  the  Queen  upon  their  oath  do  say 
"  and  present,  that  Laurence  Murphy,  late  of,  &,c.,  in 
"  the  County  of  Tipperary,  William  Jiarran,  late  of, 
"&c.,  and  John  Murphy,  late  of,  &c.,  in  the  same  Co. 
"  of  Tipperary,  yeomen,  on  the  5th  day  of  February,  2 
"  Vict.,  with  force  and  arms,  &c.,  at,  &c.,  six  sheep 
"  each  of  the  price  of  one  pound  sterling,  of  the  goods 
"  and  property  of  one  John  Costello,  then  and  there  being 
"  found,  did  then  and  there  feloniously  steal,  take,  and 
"drive  away,  against  the  peace  of  our  said  lady  the 
"  Queen,  her  crown  and  dignity,  and  contrary  to  the 
"form  of  the  statute  in  that  case  made  and  provided." 


h 


|(r   ewes. 

■)i  the 
Xilliam 


The  same  persons  were  at  the  same  time  found  guilty 
upon  another  indictment  for  a  similar  offence  on  a  dif- 
ferent day,  which  did  not  vary  from  the  above,  except 
that  it  only  charged  the  stealing  of  two  sheep.  Upon 
the  trial  it  appeared  in  evidence  that  all  the  sL;)ep  in 
both  indictments  were  ewes:  upon  which  the  counsel 
for  the  prisoners  insisted  that  the  evidence  did  not  sup- 
port the  indictment,  and  that  the  prisoners  ought  to  bo 
acquitted;  and  relied  upon  Rex  v.  Cook,  1  Leach,  105; 
2d  East,  P.  Cr.,  616;  and  other  cases  collected  in 
Archb.  Plead.  &  Ev.   192,  5th  *  edition  (a).  [*246] 

(a)  Page  195,  in  6th  Ed. 


'Hi 


946  JEBB'S   RESERVED  CASES.  [April  22 

On  the  other  hand  the  counsel  for  the  crown  contended 
that  sheep  being  a  generic  term,  included  ewes,  and 
also  that  the  9  G.  IV.  c.  55,  s.  25,  applying  to  Ireland, 
contained  a  proviso  not  to  be  found  in  the  English  Act, 
7  and  8  G.  IV.  c.  29,  s.  25;  by  reason  of  which,  and  of 
the  different  enumeration  in  the  latter,  the  English 
cases  did  not  govern  those  in  question. 

The  learned  Chief  Justice  left  the  cases  to  the  jury, 
who  found  the  prisoners  guilty  on  both  indictments; 
and  his  lordship  stated  his  intention  to  submit  the 
objection  to  the  indictments  to  the  12  Judges,  and  in 
case  they  should  consider  the  indictments  not  to  have 
been  supported  by  the  evidence,  to  recommend  the 
convicts  for  a  free  pardon. 

Nine  Judges  ( Woulfe,  C.  B.,  Pennefather,  B.,  and 

Foster,  B.,  being  absent)  unanimously  ruled  that  the 

conviction  was  good,  on  the  authority  of  M^Culljfs 
case,  2  Lervin's  C.  C.  272. 


Sec  also  Rex  v.  Puddifoot,  1  Moo.  247,  decided  on  the  Act  of  7  &  8  G.  IV.,  wiiich 
uses  the  words  "  ram,  ewe,  sheep,  or  lamb,"  where  the  Court  held  tliat  because  of 
the  specification  in  the  statute,  a  count  for  stealing  a  sheep  was  not  supported  by 
proof  of  stealing  an  ewe.  It  is  stated,  also,  in  M'Cully's  case,  2  Lewin's  C.  C.  272, 
tiiat  "in  Trin.  T.  1838,  a  large  majority  of  the  Judges  decided  that  Rex  v.  Pud. 
difont  was  bad  law,  and  that  the  word  "  sheep"  must  be  taken  to  include  all  sexes," 
Indeed,  it  would  seem  by  the  language  of  the  statute,  that  the  word  eheep  is  op- 
posed to  lamb,  and  has  reference  to  age  rather  than  to  sex. 

It  is  said,  in  a  note  to  M'Cully's  case,  that  Puddifoot's  case  was  decided  by  a 
majority  of  one;  six  judges  being  of  opinion  that  the  sex  ought  to  be  proved,  and 
five  judges  being  of  a  contrary  opinion. 


183!).]        CO.  CLARE   PRESENTMENT,  CORONERS.         iill* 


fi 


*1N  the   Matter  of  a  Prescntmciit   for  a  MEDICAL  WIT- 
NESS, at  a  Coroner's  Inquest,  Co.  CLARE. 


Tlio  mngistriilcs  and  ccss-iiaycrH  at  prcHnntincnt  sessions  liavc  |)o\\cr  to  rcdiinc  (ho 
sum  ordered  by  a  coroner  to  !)(■  paid  to  a  medical  witness,  undei  tiic  (!  &  7  W. 
4,  c.  IIG,  8.  91);  and  tlie  j;rand  jury  liavc  no  power  to  increase  it  uilerwards,  so 
us  to  make  it  eonCormable  to  the  coroner's  order.  The  Jud^e  at  tlie  assizes 
muHt  fiat  the  prcsuntiiient  as  it  came  from  sessions. 


A  Coroner  of  the  County  of  Clare  granted  an  order  to 
a  medical  witness  who  attended  at  an  inquest,  for  the 
sum  of  £3,  under  the  99th  section  cf  the  6  &  7  Wm. 
IV.  c.  116,  s.  99.  The  presentin<:  Sessions  reduced 
the  sum  to  £2.  The  Grand  Jury  passed  the  present- 
ment for  £2.  Tlie  medical  gentleman  insisted  hefore 
Richards,  B.  (the  Juilge  of  Assize),  that  the  presenting 
Sessions  or  grand  jury  had  no  right  to  reduce  the  order 
of  the  Coroner  from  £3  to  £2,  and  that  the  Grand  Jury 
had  no  power  to  adopt  the  reduction  made  by  the  pre- 
senting Sessions,  and  pressed  the  learned  Baron  to 
direct  the  Grand  Jury  to  pass  a  presentment  for  £  3, 
the  sum  ordered  by  the  Coroner. 

The  17th  section  of  the  Act  appeared  to  his  lordship 
to  give  the  presenting  Sessions  a  jurisdiction  to  reduce 
or  modify  the  class  of  presentments  therein  referred  to; 
but  that  section,  it  was  contended,  refers  to  presentments 
for  county  works,  and  to  those  presentments  oidy  that 
had  been  the  subject  of  the  prior  sections  of  the  Act. 
39 


4 


i 


Jr 


247 


JEBB'S   RESERVED   CASES. 


[April  22 


The  learned  Baron  respited  the  presentment  until 
the  opinion  of  the  Judges  should  be  obtained  upon  the 
question ;  and  in  reserving  the  case  his  lordship  referred 
to  the  3&th  section,  by  which  it  is  enacted,  That  from 
the  passing  of  that  Act  it  shall  not  be  lav/ful  for  any- 
Grand  Jury  to  make  a  presentment  for  any  public  vv^ork 
whatsoever,  or  for  raising  any  money  f"  which  an 
application  shall  not  have  been  made  ana  approved  of 
at  Sessions  either  wholly  or  in  part  as  therein  before 
[*248]  provided,  &c.;  and  also  to  the  97th  and  *98th 
sections  of  the  same  Act,  and  the  7  Wm.  IV.  c.  2,  s.  6, 
as  possibly  bearing  on  the  subject. 

The  questions  reserved  were  as  follows : — Have  the 
magistrates  and  cess-payers  at  Sessions  a  right  to  reduce 
the  amount  of  the  Coroner's  order?  2dly,  Has  the 
Grand  Jury  a  power  to  increase  the  sum,  so  as  to 
make  it  conformable  to  the  Coroner's  order?  3dly,  If 
the  presenting  Sessions  reduce  the  amount  of  the  Coro- 
ner's order,  and  the  grand  jury  pass  the  presentment 
as  sent  up  to  them  from  Sessions  (fiS  iii  the  present 
case),  what  is  the  Judge  to  do?  Is  he  Ij  prss  the  pre- 
sentment, or  to  reject  it  in  toto  ? 

A  case  similar  in  principle  to  the  foregoing  was 
brought  before  the  learned  Baron  by  Jackson,  Serj.,  in 
the  County  of  Co)%  which  his  lordship  also  reserved. 

Nine  Judges  ( Woulfe,  C.  B.,  Pennefather,  B.,  and 


1839. 


REGINA  I).  MEANY. 


S4S 


Foster,  B.,  being  absent)  unanimously  held,  1st,  that 
the  Sessions  may  reduce  the  sum  paid  by  the  Coroner; 
2dly,  that  the  Grand  Jury  cannot  increase  it;  and 
3dly,  that  the  Judge  must  pass  it,  as  it  came  from 
Sessions. 


•  THE  QUEEN  v.  MATTHEW  MEANY.      [*249] 

Where  a  prisoner  was  convicted  upon  an  indictment  under  the  51  G.  3,  c.  C3,  s.  6, 
for  an  escape  from  prison,  the  former  conviction  (wliieh  was  proved  by  a  ccrtifi.* 
cate  from  the  crown  office,)  having  been  under  the  1  Vic.  c.  8,7,  sa.  6  &,  10,  and 
the  sentence  six  months'  imprisonment:  //eW,  that  tlic  conviction  was  bad,  as 
the  escape  did  not  come  witiiin  tlic  51  G.  3,  c.  63. 

At  the  Spring  As.nzes  for  the  City  of  Kilkenny,  in 
1839,  Matthew  Meant/ was  tried  before  Crampton,3., 
on  the  following  indictment,  which  was  founded  upon 
the  51  G.  III.  c.  63,  s.  6:— ''County  of  the  City  of 
"  Kilkenry,  to  wit.     The  jurors  of  our  lady  the  Queen 
"  upon  their  oath  do  say  and  present,  that  heretofore, 
"  to  wit  at  a  general  Quarter  Sessions  of  the  peace 
"  holden  at  Kilkenny  on  the  26th  day  of  April,  in  the  1 
"Vict.,  before  Richard  Sullivan  Esq.,  then  and  there 
"  being  Mayor  of  the  City  of  Kilkenny,  and  William 
"  Henry  Bracken  Esq.,  then  and  there  being  Recorder 
"  of  the  said  City  of  Kilkenny,  and  others  their  asso- 
'  ciates,  justices  of  our  said  lady  the  Queen,  assigned 


249 


JEBB'S  RESERVED  CASE8. 


[April  22 


h  i 


I' 


ill; 


m 


i  i 


ii;i 


til  • 


ift 


'  to  keep  the  peace  of  our  said  lady  the  Queen  in  and 
'  for  the  said  County  of  the  City  of  Killiemiy,  and  also 
'  to  hear  and  determine  divers  felonies,  robberies,  tres- 
'  passes,  and  other  misdemeanors  committed  or  done 
'  in  the  said  Co.  of  the  City  of  Kilkenny,  Matthew  Meany 
'  was  in  due  form  of  law  indicted,  tried,  and  found  guilty, 
'  for  that  he  on  the  29th  day  of  March,  in  the  first  year 

*  of  the  reign  of  our  said  lady  the  Queen,  at,  &c.,  did 
'  assault  Martifi  Proctor,  with  intent  the  money  of  the 
'  said  Martifi  Proctor  from  the  person  and  against  the 
'  will  of  the  said  Martin  Proctor  feloniously  and  violently 
'  to  steal,  take,  and  carry  away,  against  the  peace  of  our 
'  said  lady  the  Queen,  and  contrary  to  the  form  of  the 
'statute  in  that  case  made  and  provided;  and  also  that 
'  he  the  said  Matthew  Meany  did  at  the  time  and  parish 
'  aforesaid  assault  the  said  Martin  Proctor;  whereupon 
'  it  was  therefore  considered  by  the  said  court  there  that 
'  [*250]  the  *  said  Matthew  Meany  should  be  impri- 

*  soned  for  the  term  of  six  months  and  be  kept  to  hard 
'labour,  and  kept  in  solitary  confinement  for  the  last 
'  fortnight;  as  by  a  certificate  of  the  record  of  the  indict- 
'ment  and  conviction  doth  more  fully  and  at  large 
'appear.  And  the  jurors  aforesaid  upon  their  oath 
'aforesaid  do  further  say  and  present  that  the  said 

Matthew  Meany  being  so  as  aforesaid  tried  and  con- 
victed of  the  said  offence  and  assault,  was  then  and 
'  thereupon  and  in  execution  of  his  said  judgment  for 
the  said  offence  and  assault  duly  committed  to  the 
custody  and  keeping  of  Peter  Duncan,  who  was  then 


183.1.] 


REGINA  V.   MEANY. 


950 


and  there  the  gaoler  of  her  said  Majesty's  gaol  of  the 
County  of  the  City  of  Kilkemuj.  And  the  jurors 
aforesaid  upon  their  oath  aforesaid  do  farther  say  and 
present,  that  the  said  Matthew  Meany  afterwards,  and 
whilst  he  was  so  in  custody  of  the  said  Peter  Dwican, 
the  gaoler  and  keeper  of  the  said  gaol  as  aforesaid, 
under  and  by  virtue  of  the  said  judgment  and  sentence 
aforesaid,  to  wit,  on  the  31st  day  of  July  in  the  2d 
year  of  the  reign  aforesaid,  with  force  and  arms,  at 
Kilkenny  aforesaid,  in  the  County  of  the  City  of  Kil- 
kenny aforesaid,  against  the  will  and  without  the 
license  of  the  said  Peter  Duncan,  the  gaoler  and 
keeper  of  the  said  gaol  as  aforesaid,  unlawfully,  wick- 
edly, violently,  and  feloniously  did  break  the  gaol  of 
the  said  County  of  the  City  of  Kilkenny,  by  breaking 
the  door  and  window  of  the  said  gaol;  by  means 
whereof  he  the  said  Matthew  Meany  did  then  and 
there  escape  and  go  at  large  out  of  the  said  gaol  and 
from  the  custody  of  the  said  Peter  Duncan,  the  keeper 
and  gaoler  of  the  said  gaol  of  Kilkenny  in  the  County 
of  the  City  of  Kilkenny  aforesaid,  to  the  great  hin- 
drance and  obstruction  of  justice,  in  contempt  of  our 
said  lady  the  Queen  and  her  laws,  to  the  evil  example, 
&c." 


»^ 


*  The  evidence  was  as  follows: — Peter  Dun-  [*251] 
can,  the  gaoler  of  the  City,  swore  that  ',he  prisoner,  who 
was  in  his  custody  under  a  conviction  at  the  Quarter 
Sessions,  broke  gaol  and  escaped  by  breaking  the  door 


351 


JEBB'S    RESERVED   CASES. 


[April  22 


and  window  of  the  said  gaol,  by  means  whereof  he  the 
said  Matllicw  Meany  did  then  and  there  escape  and  go 
at  large  out  of  the  said  gaol  and  from  the  custody  of  the 
said  Peter  Dimcati,  the  keeper  and  gaoler  of  the  said 
gaol,  &c.  The  following  certificate  of  the  clerk  of  the 
peace  was  then  produced  and  proved.  "  I  certify  that 
"  at  a  general  Quarter  Sessions  held  in  and  for  said 
"  City  the  2Gth  of  April,  183S,  before  Richard  Sullivan 
"Esq.  (Mayor),  William  H.  Bracken  Esq.,  Recorder, 
"  &c.,  Matthew  Meany  was  indicted  for  that  he  on  the 
"29th  of  March,  1st  Vict.,  at,  &c.,  feloniously  did 
"  assault  Martin  Proctor,  with  intent  the  monies  of  the 
"  said  Martin  from  the  person  and  against  the  will  of 
"  said  Martin  feloniously  and  violently  to  steal,  take,  and 
"carry  away,  against  the  peace  and  statute;  and  was 
"  also  indicted  for  a  common  assault  on  said  Martin. — 
"  27th  April.  Tried  and  found  guilty,  and  sentenced 
"to  be  imprisoned  for  six  months,  and  kept  to  hard 
"  labour,  and  to  be  kept  in  solitary  confinement  for  the 


"last  fortnight. 


Patrick  Walters, 
''Clerk  of  the  Peace." 


The  indictment  upon  which  this  conviction  took  place 
was  then  proved,  and  it  was  as  follows: — "County  of 
"  the  City  of  Kilkenny  to  wit :  The  jurors  for  our  said 
"  lady  the  Queen  upon  their  oath  do  say  and  present 
"  that  Matthew  Meany,  now  a  prisoner  in  the  gaol  of 
"  said  City,  on  the  29th  day  of  March,  in  the  1st  Vict., 


183!).] 


REGINA  V.   MEANY. 


951 


"  with  force  and  arms,  &c.,  at,  &c.,  in  and  upon  one 
"  Martin  Proctor,  in  the  peace  of  God  and  of  our  said 
"  [*252]  lady  the  Queen  then  *  and  there  being,  febni- 
**  ously  did  make  an  assault,  with  intent  the  monies  of  the 
"  said  Martin  Proctor  from  the  person  and  against  the 
"  will  of  him  the  said  Martin  Proctor  then  and  there  felo- 
"  niously  and  violently  to  steal,  take,  and  carry  away, 
**  against  the  form  of  the  statute  in  such  case  made  and 
"  provided,  and  against  the  peace  of  our  said  lady  the 
"  Queen,  her  crown  and  dignity.  And  the  jurors  aforesaid 
"  upon  their  oath  aforesaid  do  further  present,  that  the 
"  said  Matthew  Meany  on  the  said  29th  day  of  March,  in 
*'  the  year  aforesaid,  with  force  and  arms  at,  &c.,  in  and 
"  upon  the  said  Martin  Proctor,  in  the  peace  of  our  said 
"lady  the  Queen  then  and  there  being,  did  make  an 
"  assault,  and  him  the  said  Martin  Proctor  did  then  and 
"  there  beat,  wound,  and  ill-treat,  and  other  wrongs  to 
"the  said  Martin,  then  and  there  did,  to  the  great 
"  damage  of  the  said  Martin,  and  against  the  peace  of 
"  our  said  lady  the  Queen,  her  crown  and  dignity." 


place 
tyof 
said 
esent 
iol  of 
Vict., 


The  conviction  upon  this  indictment  was  under  the 
1  Vict.  c.  87,  ss.  6,  10,  by  which  the  offence  of  assault- 
ing with  intent  to  rob  is  made  punishable  by  imprison- 
ment not  exceeding  three  years,  with  or  without  hard 
labour,  and  with  or  without  solitary  confinement. 

The  prisoner  was  found  guilty,  but  the  learned  Judge 
doubting  that  the  certificate  of  the  prisoner's  conviction 


JEBB'S  RESERVED  CASES. 


[April  23 


was  under  the  circumstances  admissible  evidence, — and 
also  doubting  that  the  indictment,  which  was  founded 
upon  the  statute  of  the  51  Geo.  III.  c.  63,  s.  6,  was  sus- 
tained by  the  evidence — refrained  from  passing  any  sen- 
tence, reserving  the  points  for  the  consideration  of  the 
Twelve  Judges.  His  lordship,  in  reserving  the  case,  sub- 
mitted the  following  observations  to  the  consideration  of 
[*253]  the  Judges. — The  *  conviction  of  the  prisoner 
at  the  Mayor's  Court  in  Kilkenny,  in  April  1839,  was 
under  the  1  Vicl.  c.  87,  ss.  6  and  10,  by  which  the 
offence  of  assaultmg  with  intent  to  rob  is  made  punish- 
able by  imprisonment  not  exceeding  three  years;  with 
or  without  hard  labour  or  solitary  confinement.  He  was 
sentenced  to  six  months'  imprisonment,  hard  labour  and 
solitary  confinement;  he  escaped  from  custody  under 
this  sentence  in  July,  1838,  and  he  was  indicted  at  the 
Assizes  for  the  escape,  Jiot  on  the  1  &  2  W.  IV.  c.  44, 
s.  4,  but  on  the  51  G.  III.  c.  63,  s.  6.  That  Act  {a)  is 
applicable  only  to  cases  in  which  the  offence,  the  sub- 
ject of  enactment,  is  a  transportable  offence ;  in  such 
cases  the  court  may  substitute  imprisonment  with  hard 
labour;  and  in  such  cases  an  escape  is  subject  to  the 
penalties  of  s.  6,  and  an  easy  mode  of  proving  the  pre- 
vious conviction  is  allowed  by  s.  7.  But  Meam/s  ori- 
ginal offence,  was  committed  after  the  iVict.  c.  87,  came 
into  operation,  viz.  after  the  1st  of  October,  1837;  and 
it  was  therefore  not  a  transportable  offence,  and  conse- 

(ffl)  Vide  8.  2. 


for 


1839,J 


COUNTY   PRINTING. 


8sa 


qiiently,  in  the  opinion  of  the  learned  Judge,  the  51  G. 
in.  c.  63,  did  not  apply  to  his  escape  at  all. 

Nine  Judges  (Woulfe,  C.  B.,  Pennrfather,  B.,  and 
Foster,  B.,  being  absent),  unanimously  held  that  the 
conviction  was  bad,  on  the  ground  that  the  prisoner's 
escape  was  not  such  an  esc^)e  as  came  within  the  pro- 
visions of  the  statute  (51  G.  III.  c.  63)  upon  which  the 
indictment  was  founded.  For  the  same  reason  they 
held  that  the  mode  of  proving  the  former  conviction 
permitted  by  the  same  statute,  (viz.  the  certificate)  could 
not  be  allowed  in  this  case  {b). 

ih)  If  the  case  had  come  wiU.in  the  9  G.  4,  c.  54,  s.  21,  the  certificate  would  have 
been  idinissible. 


I 


IN  the  Matter  of  a  Presentment  for  PRINTING,  County  [*254] 

TIPPERARY. 

A  contract  to  perform  the  printing  work  of  a  county  for  one  year,  is  warranted  by 
the  6&7W.4,  c.  1J6,  S.47. 

An  application  for  the  printing  work  of  the  county  of 
Tipperary,  for  the  year  1839,  was  made  at,  and  approved 
of  by,  the  proper  Presentment  Sessions,  the  calculated 
amount  being  above  £100,  and  the  usual  advertisement 
for  sealed  tenders  and  proposals  to  be  opened  by  the 
grand  jury  at  the  following  Assizes  was  published. 
Accordingly,  several  sealed  tenders  and  proposals  were 
40 


;i 


9J4 


JEBD'S   RESERVE'i)  CASES. 


[May  1 


sent  in  and  opened  by  the  Grand  Jury;  and  the  propo- 
sal of  Mr.  Vpton  to  do  the  county  printing  work  for  one 
whole  year,  for  the  sum  of  X" 020,  wa.i  accepted,  and  the 
presentment  for  that  purpose  came  before  CramjUon,  J., 
at  the  Spring  Assizes  of  Clonmel,  in  1839,  to  be  fiatcd. 

It  was  objected,  that  the  contract  should  be  from 
assizes  to  assizes  only,  and  not  for  one  whole  year,  as 
the  contract  in  question  was ;  and  the  learned  Judge 
directed  the  presentment  to  be  fiated,  subject  to  the  opi- 
nion of  the  Judges  on  that  point  (a). 


al. 


Ten  Judges  [Penne father,  B.,  and  Richards,  B.,  being 
absent)  unanimously  decided  in  favour  of  annual  con- 
tracts. 

(n)  Sco  6  &  7  W,  4, 88.  47, 131. 


[*355]         THE  QUEEN  v.  PETER  DENENY. 

Cows  are  not  chattels  within  the  meaning  of  the  9  C.  4,  c.  55,  ss.  40,  41,  43, 

Peter  Deneny  was  tried  before  Perrin,  J.,  at  the 
Spring  Assizes  of  Roscommon  in  1839,  upon  an  indict- 
ment which  charged,  in  the  first  count,  that  he  on  the 
15th  of  May,  7  W.  IV.,  at  Kilmore,  being  then  and  there 
employed  as  a  herd  to  one  James  Coyne,  by  virtue  of 


183!); 


REOINA   V.   DENENY. 


m 


43. 


such  employment  did  take  into  his  possession  two  cows, 
price  £  10  eacli,  for  and  in  the  name  of  said  James  Coyne, 
and  which  cows  he,  the  said  Peter  Dencnij,  did  then  and 
there  feloniously  embezzle,  and  the  same  feloniously 
did  steal,  take  and  drive  away,  against  the  peace  and 
statute.  The  second  count  was  the  same  as  the  first, 
stating  the  prisoner  to  he  a  servant.  The  third  count 
stated,  that  he,  the  said  Peter  Denemj,  feloniously  did 
emhezzle,  and  steal,  take,  and  drive  away,  against  peace 
and  statute. 

Upon  the  trial,  the  first  witness,  James  Coijne,  de- 
posed, that  the  prisoner  had  a  large  quantity  of  cows 
and  sheep  belonging  to  witness  in  his  charge  as  herd, 
which  witness  gave  him  charge  of  on  the  15th  of  May. 
On  the  20th,  witness  missed  two  cows  and  five  sheep; 
the  prisoner  had  absconded,  and  was  not  to  be  found. 
Witness  saw  the  cows  afterwards,  one  on  the  25th  of 
June,  the  other  on  the  4th  of  July,  in  possession  of  Mr. 
Stafford.  AVitness  had  not  authorized  the  prisoner  to 
dispose  of  them,  and  the  prisoner  never  returned  them 
as  sold.  On  being  cross-examined,  the  witness  said  that 
the  prisoner  had  been  seven  years  in  his  employment 
as  herd,  and  that  he  did  consider  him  at  one  time  a  man 
of  good  character. 


*The  second  witness,  Michael  Flanagan,  [*256] 
stated,  that  he  was  in  Mr.  Stafford's  employment;  he 
bought  two  cows  from  the  prisoner  in  the  fair  of  Strokes- 


8S6 


JEDD'S   RESERVED  CASES. 


[Juno  4 


town,  on  15th  of  May,  for  Mr.  Staffwd;  the  prisoner 
told  witness,  tliat  one  was  his  master's,  and  one  his  own; 
witness  paid  for  them  X'8  15a-.,  and  X'8  5.v. 

The  third  witness,  Michael  Flanagan,  jun.,  said,  that 
he  was  present  when  the  cows  were  sold ;  these  were 
the  cows  which  Mr.  Coyne  saw  and  claimed  on  the 
'25th  of  June,  and  4th  of  July. 

The  fourth  witness,  John  Stafford,  said,  that  he  was 
present  at  the  sale  of  the  cows,  and  gave  the  £  17  to 
Flanagan  to  pay  for  them,  a-^d  saw  the  money  paid. 


m 


MB'''! 


BlaTieney,  for  the  prisoner,  objected  that  this  was  not 
a  case  within  the  9  G.  IV.  c.  55,  ss.  40,  41,  42,  cows 
not  being  chattels  within  the  meaning  of  that  statute. 
The  learned  Judge  left  the  case  to  the  jury,  who  found 
the  prisoner  guilty.  But  he  respited  sentence,  and  re- 
served tht  question  for  the  consideration  of  the  Judges. 


Ten  Judges  having  met  ( Woulfe,  C.  B.,  and  Penne- 
father,  B.,  being  absent),  all,  except  Foster,  B.,  and 
Richards,  B.,  held  that  the  conviction  was  bad.    Those 
two  Judges  held  that  it  was  good. 


ifl;»9. 


REOINA  V.   bRADY. 


337» 


*TnE  (iUEEN  V.  JOHN  BllADY  and  MICHAEL 

COOiNEV. 


An  indictment  cliarfrcd  tlio  priHoncr  witli  Nliootinj;  at  M.  D,,  witli  intent  to  maim 
and  ditiubio  liiiii,  Ntiitin^  in  one  count  tliiit  the  |i;un  wuh  iondud  with  )riiii|io\vder 
and  leaden  Nlii;rN,  and  in  nnntliur  count  with  ;riin|)owdur  and  leaden  HJiut.  Tliero 
WOH  no  evidence  that  any  ball,  hIujj,  or  shot  hud  been  found,  or  any  wound  in. 
flictcd;  nor  wuh  it  hIiowh  in  what  manner  the  gun  hud  l)ccn  loaded.  The  jndjrc 
told  the  jury  it  was  not  neccsHury  that  they  NJiould  bo  HUtiMtied  that  the  (run  wuh 
loaded  with  nluga  or  shut,  but  that  if  they  believed  it  wan  loaded  with  any  Hub- 
stance  calculutod  to  act  liko  slugs  or  shot,  it  was  sufl'icient ;  and  ho  Icfl  the  cnso 
to  tho  jury,  to  say  upim  the  circumstantial  evidence  whether  it  was  so  loaded. 
The  jury  found  tlic  j>i  isoncr  guilty.    Held,  tliat  tho  conviction  was  right. 


At  the  Spring  Assizes  for  the  County  of  Cavan,  in 
1839,  John  Brady  was  tried  before  Foster,  B.,  on  the 
following  indictment : — "The  jurors  for  our  Lady  the 
"  Queen  upon  their  oath  present,  that  John  Brady,  late 
"  of  Lara,  in  the  county  of  Cavan,  labourer,  and  Michael 
**  Cooney,  late  of  the  same  place,  labourer,  not  having 
"  the  fear  of  God  before  their  eyes,  but  being  moved  and 
"  seduced  by  the  instigation  of  the  devil,  on  the  22d  day 
"  of  July,  2  Vict.,  with  force  and  arms,  at  Aughagohrick 
"  in  the  county  of  Cavan,  aforesaid,  in  and  upon  one 
"  Marcus  Gervaise  Beresford,  in  the  peace  r>f  God  and 
"  of  our  said  Lady  the  Queen  then  and  there  being, 
"  feloniously,  maliciously,  and  unlawfully  did  make  an 
"  assault,  and  that  the  said  John  Brady,  with  a  certain 
"  gun,  of  the  value  of  55.,  then  and  there  loaded  with 
**  gunpowder  and  leaden  slugs,  which  gun  the  said  John 


i 


257 


JEBB'S   RESERVED  CASES. 


[June  4 


H 

ii 


i  A 


'  Brady  in  both  his  hands  then  and  there  had  and  held, 
'  feloniously,  wilfully,  maliciously,  and  unlawfully,  did 
'  shoot  at  the  said  Marcus  Gervaise  Beresford^  with  in- 
'  tent,  in  so  doing,  and  by  means  thereof,  to  maim  him 
'  the  said  Marcus  Gervaise  Bercsford;  and  that  the  said 
'  Michael  Cooneij  then  and  there  wilfully,  maliciously, 

*  unlawfully,  and  feloniously  was  present,  aiding,  abet- 
'ting,  counselling,  and  commanding  the  said  John 
'  Brady  the  felony  aforesaid,  in  maniior  and  form  afore- 
'  said  to  do  and  commit,  against  the  peace  of  our  said 
'  Lady  the  Queen,  her  Crown  and  Dignity,  and  con- 
'  [*258]  trary  to  the  form  of  the  *  statute  in  that  case 
'  made  and  provided."    There  was  a  second  count,  as 

follows: — "And  the  jurors  aforesaid  upon  their  oath 
'  aforesaid  do  further  present  that  the  said  John  Brady ^ 
'  being  such  evil  disposed  person  as  aforesaid,  on  the 
'  said  22d  day  of  July,  in  the  second  year  of  the  reign 
'  of  our  said  Lady  the  Queen,  with  force  and  arms  at, 

*  &c.,  in  and  upon  the  said  Marcus  Gervaise  Beresford, 
'  did  feloniously,  wilfully,  maliciously,  and  unlawfully 
'  make  an  assault,  and  that  the  said  Joh?i  Brady,  with  a 
'certain  gun,  of  the  value  of  5s.,  then  and  there  loaded 
'  with  gunpowder  and  leaden  shot,  which  gun  the  said 
'  John  Brady  in  both  his  hands  held,  feloniously,  wil- 
'  fully,  maliciously,  and  unlawfully,  did  shoot  at  the 
'said  Marcus  Gervaise  Beresford,  with  intent,  in  so 
'  doing,  and  by  means  thereof,  to  disable  the  said  Mar- 
^  cus  Gervaise  Beresford,  and  that  the  said  Michael 
'  Cooney  then  and  there  feloniously,,  wilfully,  mali- 


Pl:! 


Ii: 


Ii 


1833. 


REGINA    ».   BRADY. 


258 


*'  cioiisly,  and  unlawfully,  was  present,  aiding,  abetting, 
"  counselling,  and  commanding  the  said  John  Bradij  the 
"  felony  last  aforesaid  in  manner  and  form  aforesaid  to 
"do  and  commit,  against  peace  and  statute." 

There  were  other  counts  laying  the  intent  differently, 
but  all  laying  the  gun  to  be  loaded  in  the  manner  before 
described. 


When  the  case  for  the  Crown  was  closed,  counsel  for 
the  prisoner  Brady  submitted,  that  he  was  entitled  to  an 
acquittal,  on  the  ground  that  no  ball,  slug,  or  shot,  had 
been  found,  no  wound  inflicted,  nor  any  evidence  given 
as  to  the  mode  in  which  the  gun  had  been  loaded,  or  of 
its  having  been  loaded  with  any  thing  beyond  gun- 
powder, and  they  cited  the  cases  of  Rex  v.  WJiitleij,  1 
Lewin,  123;  and  Rex  v.  Hughes,  *5  C.  &  P.  [*259] 
12G  (24  E.  G.  L.  241).  The  learned  Baron,  upon  this, 
conferred  with  Pennefmher,  B.,  who  was  joined  with 
him  in  the  Commission ;  and  it  appeared  to  them,  with 
respect  to  the  case  of  Rex  v.  Hughes,  in  5  C.  &  P.,  that 
in  that  case  two  shots  having  been  fired  from  two  pis- 
tols, but  the  indictment  having  relation  to  only  one  of 
those  pistols,  and  to  one  of  those  shots,  a  doubt  was 
raised  by  the  surgeon's  evidence  whether  the  only  pistol 
which  was  in  question  in  that  indictment,  had  been 
loaded  with  any  thing  beyond  wadding;  and  that  it 
would  appear  from  what  BoIIand,  B.,  said,  that  if  the 
question  had  arisen  with  respect  to  the  other  pistol,  he 


mi 


259 


JEBB'S    RESERVED   CASES. 


[June  4 


would  have  left  it  (on  a  very  slight  circumstance)  to  the 
jury  to  say,  whether  it  had  been  loaded  with  ball.  The 
learned  Judges  came  to  the  conclusion,  that  the  proper 
course  would  be  that  Foster,  B.,  should  leave  it  to  the 
jury  to  say  upon  the  circumstantial  evidence,  whether 
the  gun  had  been  loaded  in  such  a  manner  as  to  fit  it 
foir  maiming  or  disabling ;  and  that  if  they  were  satisfied 
of  that,  the  mode  of  loading  the  gun  stated  in  the  in- 
dictment would,  so  far  as  the  loading  of  the  gun  was 
concerned,  justify  a  conviction.  The  learned  Baron 
accordingly  told  the  jury,  that  unless  they  should  be 
satisfied  that  the  gun  was  loaded  in  such  a  manner  as 
to  be  fitted  for  maiming  or  disabling,  whatever  might 
be  their  views  of  the  other  parts  of  the  case,  they  must 
acquit  the  prisoner;  but  he  told  them  that  in  his  opinion 
it  was  not  necessary  that  they  should  be  satisfied  that 
the  gun  was  loaded  with  either  leaden  slugs  or  leaden 
shot,  for  that  if  they  believed  it  was  loaded  with  any 
substance  or  substances  usually  employed  in  loading 
fire-arms,  and  calculated  to  act  like  leaden  slugs  or 
leaden  shot  in  maiming  or  disabling,  the  description  in 
the  indictment  was  sufficiently  ^'ejusdem  generis'^  to 
[|*260]  sustain  a  conviction.  He  then  told  *  them  that 
there  was  no  direct  evidence  of  the  manner  in  which 
the  gun  was  loaded ;  no  ball  was  found,  and  no  wound 
inflicted,  and  there  was  no  witness  who  had  seen  it 
loaded ;  but  his  lordship  added  that,  in  the  absence  of 
direct  proof,  the  mode  of  loading  of  the  gun  was,  in  his 
opinion,  like  any  other  fact,  capable  of  being  inferred 


1839. 


REGINA   t).   BRADY. 


360 


from  circumstantial  evidence,  if  that  evidence  were  per- 
fectly satisfactory  to  the  jury;  and  he  submitted  to  them 
the  following  circumstances  existing  in  this  case. — 
First;  The  Rev,  M.  G.  Beresford  had  sworn  he  was 
well  accustomed  to  the  use  of  fire-arms,  and  that  he  was 
within  ten  yards  of  the  man  when  the  shot  was  fired, 
and  he  said  the  report  v^as  loud,  and  proceeded  from  a 
gun  that  appeared  to  be  heavily  loaded.  Secondly; 
The  place  was  on  the  road  by  which  Mr.  Beresford 
ordinarily  passed  to  the  church  where  he  usually  offici- 
ated, and  the  time  was  a  quarter  of  an  hour  before  the 
commencement  of  Divine  service.  Thirdly;  It  was 
proved  that  the  man  who  fired  the  shot,  together  with 
another  man,  each  of  whom  had  a  gun,  was  lying  con- 
cealed in  the  field  by  the  road-side  at  the  back  of  a 
hedge  from  whence  the  shot  was  fired,  and  had  been 
lying  there  for  about  half  an  hour  before  the  coming  up 
of  Mr.  Bercxford  in  his  gig.  Fourthly;  Upon  a  car 
coming  up  immediately  before  Mr.  Beresford' s  gig,  the 
man  who  afterwards  fired  the  shot  stood  up,  looked  over 
the  hedge  at  the  car,  and  lay  down  again  after  it  had 
passed.  Fifthly;  That  on  Mr.  Beresford' s  coming  up, 
this  man  rose,  looked  over  the  hedge,  and  stepped  to  a 
gate  whiph  was  close  to  where  he  was  lying,  and  took 
aim  at  Mr.  Beresford  and  fired.  Sixthly;  That  both 
men  immediately  fled  across  the  fields  after  the  shot 
was  fired.  Seventhly;  That  being  pursued,  the  man 
wlio  had  fired,  stopped,  reloaded  his  *  gun,  pre-  [*261] 
41 


if 


ill 
I 


261 


JEBD'S    RESERVED  CASES. 


[June  4 


m 


sented  it  at  his  pursuer,  and  told  him  that  unless  he 
would  go  back  he  would  lay  him  down. 

The  jury  found  the  prisoner  guilty,  but  the  learned 
Baron  respited  sentence  in  order  to  obtain  the  opinion 
of  the  Judges  upon  the  foregoing  questions;  and  in 
reserving  the  case  he  referred  their  lordships  to  the 
following  authorities;  1  Leach,  247;  1  Hawk.  P.  C,  c. 
15,  s.  9;  Russ.  &  Ry.  95;  1  Lewin,  123,  126;  6  Carr. 
&  P.  126  (24  E.  C.  L.  241);  Deacon's  C.  L.  834. 

Ten  Judges  being  present  {ahsentihus  Wonlfe,  C.  B., 
and  Pennefather,  B.,)  eight  of  them  (Bushe,  C.  J., 
DoHERTY,  C.  J.  C.  Pleas,  Johnson,  J.,  Burton,  J., 
ToRRENs,  J.,  Foster,  B.,  Crampton,  J.,  and  Richards, 
B.,)  held  that  the  conviction  was  right. — Perrin,  J., 
and  Ball,  J.,  held  that  it  was  wrong. 


See  ante,  Rex  v.  Shannon,  209,  where  the  indictment  charged  an  afleinp-  to 
poison  by  mixing  a  certain  poison,  to  wit,  sugar  of  lead,  with  flour.  The  jury 
found  tiio  prisoner  guilty  of  liaving  administered  the  poison,  but  were  unable  to 
Bay  what  precise  sort  of  poison  had  been  used.  Conviction  held  good.  See  Roa> 
coc's  Crim.  £vid.  p.  90,  Sharswood's  Ed.  Phil.  1840. 


i 


1839.] 


REGINA  V.  GAYNOR. 


262« 


*THE  QUEEN  v.  LUKE  GAYNOR. 

Indictment  for  perjury  committed  upon  a  trial  for  burglary.  The  perjury  assigned 
was,  that  the  prisoner  swore  upon  that  trial  that  ho  had  not  heard  a  certain 
conversation,  whereas  in  fact  he  had  heard  it.  To  support  the  charge  of  per- 
jury, informations  were  proved  (by  the  evidence  of  one  of  the  magistrates  who 
took  them,)  in  which  the  jirisoner  swore  he  had  heard  the  conversation;  and  tico 
witnesses,  one  of  whom  was  the  same  magistrate  who  proved  the  informations, 
proved  that  the  prisoner  had  sworn  at  the  trial  that  he  hud  not  heard  it.  Held, 
that  a  conviction  on  this  evidence  was  wronw. 


The  prisoner  was  tried  at  the  Spring  Assizes  for  the 
Co.  of  Meath,  in  1839,  before  Torrens,  J.,  upon  a  charge 
of  perjury.     The  indictment,  after  reciting  the  trial  of 
James  Carolan,  Patrick  Geoghegan,  and  Peter  Duff,  for 
burglary,  at  the  Summer  Assizes  at  Trim.,  in  1838,  at 
which  time  the  perjury  was  alleged  to  have  been  com- 
mitted, proceeded  thus:— "And  the  jurors  aforesaid, 
"  &c.,  do  -3y  and  presciit,  that  upon  the  said  trial  of 
"  the  said  James  Carolan,  &c.,  it  then  and  there  became 
"  and  was  material  to  inquire  whether  he  the  said  Luke 
"  Gay  nor  on  the  night  mentioned  in  the  said  indictment, 
"to  wit,  on  the  night  of  the  said  2d  day  of  April,  in  the 
"  said  first  year  of  the  reign  aforesaid,  heard  any  talk 
"  between  the  said  Patrick  Geoghegan  and  Peter  Duff, 
"  charged  in  said  indictment,  about  the  linen  that  was 
"taken  from  the  said  M.  ConnelVs  house  that  night, 
"  (meaning  the  night  of  the  said  2d  day  of  April  in 
"  the  year  aforesaid)  and  also  whether  he  the  said  Luke 
"  Gaynor  saw  any  linen  divided  that  night  in  Carolan' s 


S62 


JEBB'S  RESERVED  CASES, 


[June  4 


m 


I!  < 


"  house  (meaning  the  house  of  the  said  James  Carolan 
"so  charged  in  the  said  indictment);  and  the  jurors 
"  aforesaid  upon  their  oath  aforesaid  do  further  say  and 
"present,  that  the  said  Luke  Gaynor  being  so  sworn 
"as  aforesaid,  not  having  the  fear  of  God  before  his 
"eyes,  but  being  moved  and  seduced  by  the  instigation 
"  of  the  devil,  and  contriving  and  intending  that  the  said 
"  James  Carolan,  Patrick  Geoghegan,  and  Peter  Duff, 
"  should  be  unjustly  acquitted  of  the  said  burglary  and 
"  felony  so  charged  in  said  indictment,  then  and  there 
"  on  the  said  trial,  upon  his  oath  aforesaid,  falsely,  cor- 
"  [*263]  ruptly,  knowingly,  wilfully,  aid  *  maliciously, 
"  before  the  said  jurors  so  sworn  as  aforesaid,  and  before 
"  the  said  John  Dpherty,  and  William  Johnson,  justices 
"  and  commissioners  as  aforesaid,  did  depose,  swear,  and 
"give  in  evidence  amongst  other  things  in  substance 
"  and  to  the  effect  following,  that  is  to  say,  that  he  the 
"  said  Luke  Gaynor  did  not  on  the  night  mentioned  in 
"  the  said  indictment,  to  wit,  on  the  night  of  the  said 
"  2d  day  of  April,  in  the  year  aforesaid,  hear  any  talk 
"  between  the  said  Patrick  Geoghegan  and  Peter  Diiff 
"  about  the  linen  that  was  taken  from  the  said  Matthew 
"  ConneU's  house  that  night,  and  tliat  he  the  said  Luke 
"  Gaynor  never  said  or  swore  that  he  the  said  Luke 
"  Gaynor  heard  the  said  Patrick  Geoghegan  and  Peter 
"  Duff  talk  about  the  linen  that  night,  meaning  the 
"  night  of  the  said  2d  day  of  April,  in  the  year  afore- 
"  said,  and  that  he  the  said  Luke  Gaynor  did  not  see 
"  any  linen  divided  that  night  in    Carolan's  house 


1830] 


REGINA   V.  GAYNOR. 


2G3 


cor- 


(meaning  the  house  of  James  Carolan  charged  in  said 
indictment);  wliereas  in  truth  and  in  fact  the  said 
Luke  Gatjnor  on  the  night  mentioned  in  the  said 
indictment,  to  wit,  the  night  of  the  said  2d  day  of 
April,  did  hear  talk  between  the  said  Patrick  Geoghe- 
gan  and  Peter  Duff  about  the  linen  that  was  taken 
from  the  said  Matthew  ConnelVs  house,  and  whereas 
in  truth  and  in  fact  the  said  Lulie  Gaynor  had  there- 
tofore and  previously  to  the  said  trial  as  aforesaid,  to 
wit,  on  the  11th  day  of  April  in  the  said  first  year  of 
the  reign  aforesaid,  before  George  Despard,  George 
M^ Adams,  and  George  Francis  Blackhurne,  Esc^rs., 
three  of  her  Majesty's  justices  of  the  peace  in  and  for 
the  County  of  Meath,  (they  the  said  George  Despard, 
George  M' Adams,  and  George  Francis  Blackburne 
then  and  there  having  sufficient  power  and  authority 
to  administer  an  oath  in  that  behalf,)  positively  said 
and  swore  that  lie  the  said  Luke  Gaynor  did  hear 
*  the  said  Patrick  Geoghegan  and  Peter  Duff  [*264] 
talk  about  the  linen  that  night  (meaning,  &-c.),  and 

*  whereas  in  truth  and  in  fact  he  the  said  Luke  Gaynor 
'did  see  linen  divided  that  night  (meaning,  &c.),  in 

Carolan' s  house,  (meaning,  &c.);  and  so  the  jurors 
'  aforesaid  upon  their  oath  aforesaid  do  further  say  and 
'present  that  the  said  Luke  Gaynor,  at  the  court  of 

*  Assizes  Sessions  of  Oyer  and  Terminer  and  general 
'  gaol  delivery  of  our  said  Lady  the  Queen,  holden  at 
'  Trim,  in  and  for  the  County  of  Meath  aforesaid,  before 

the  said  John  Doherty  and  William  Johnson,  then  and 


m 


I 


SG4 


JEBB'S    RESERVED   CASES. 


[Juau  4 


••  there  being  such  justices  and  commissioners  as  afore- 
"  said,  and  then  and  there  having  sufficient  and  compe- 
*'  tent  power  and  authority  to  administer  said  oath  to 
"  the  said  Luke  Gaynor  in  manner  and  form  aforesaid, 
"  wilfully,  wickedly,  and  corruptly  did  commit  wilful 
"and  corrupt  perjury,"  &c. 


On  the  part  of  the  prosecution,  the  first  witness  was 
George  A.  Pollock,  Esq.  deputy  clerk  of  the  crown,  who 
proved  the  record  of  the  proceedings  in  the  case  of  the 
Queen  v.  Carolan  r^nd  others,  and  that  the  prisoners 
were  acquitted.  1  he  second  witness  was  George  Des- 
pard,  Esq.,  stipendiary  magistrate  for  the  County  of 
Meath;  who  stated  that  he  knew  the  prisoner  Luke 
Gaynor,  and  identified  him;  remembered  his  having 
sworn  informations  before  him  and  other  magistrates 
respecting  a  burglary  and  robbery  which  had  been 
committed  at  the  house  of  Mattherv  Connell;  looked  at 
the  informations  which  were  shown  to  him,  and  stated 
that  he  read  those  informations  to  the  prisoner,  who 
perfectly  understood  them;  he  proved  his  own  hand- 
writing and  the  prisoner's  mark  to  the  informations;  he 
was  present  at  the  trial  of  Carolan  and  others  at  the 
summer  Assizes  in  1838,  and  heard  the  prisoner  Luke 
[*265]  *  Gaynor  examined,  when  he  swore  "That  he 
"never  heard  any  talk  between  Geoghegan  and  Di/Jf 
"  about  the  linen  stolen  from  Mattherv  Connell' s  house 
"  on  the  night  he  was  in  Carolan' s  house,  nor  did  he 
"  (the  prisonier)  ever  say  or  swear  that  he  had  heard 


1839.] 


REOINA   t>.  GAYNOR. 


SfiS 


"such  talk,  nor  did  he  see  any  linen  divided  in  the 
*'  house  of  Carolan  that  niffht."  Witness  also  said  that 
he  could  state  from  memory,  without  lookin*^  at  the 
informations,  what  the  prisoner  had  deposed  to  before 
himself  and  the  other  magistrates,  and  what  he  swore 
on  the  trial  of  Carolan.  The  third  witness  was  /.  W. 
Browne,  Esq.;  he  stated  that  he  was  employed  in  the 
Crown  Solicitor's  office;  he  attended  the  trial  of  Carolan 
and  others  at  the  Summer  Assizes  in  1838,  and  he 
stated,  from  a  written  memorandum  taken  at  the  time, 
that  the  prisoner  Gaynor  swore  on  that  trial,  "That 
"he  never  heard  any  conversation  or  talk  about  the 
"linen  stolen  from  Matthew  ConnelVs  house  between 
"  Geoghegan  and  Duff  on  the  night  in  question,  nor  did 
"  he  ever  say  or  swear  that  he  had,  nor  did  he  ever  see 
"  any  linen  divided  in  Carolah's  house  that  night." 


The  case  for  the  crown  having  closed,  F.  Brady,  for 
the  prisoner,  called  upon  the  learned  Judge  to  direct  the 
jury  to  acquit  him,  upon  the  grounds,  first,  that  there 
was  no  evidence  to  shew  which  of  the  two  statements 
by  the  prisoner  was  the  false  one;  and  secondly,  that 
there  was  no  second  witness  to  the  offence,  the  matter 
alleged  as  perjury  h?  ing  been  contradicted  by  the  evi- 
dence of  Mr.  Despard  alone.  He  relied  upon  the  follow- 
ing authorities;  Rex  v.  Perrot,  2  M.  &  S.  379,  385,  392; 
Rex  v.  Harris,  5  B.  &  Al.  926;  Jackson^ s  case,  1  Lewin, 
270;  Roscoe  on  Ev.  688;  Wheatland's  case,  8  C.  &  P. 
238  (34  E.  C.  L.  369);  Muscofs  case,  10  Mod.  192; 
Rex  V.  Nunez,  Cas.  T.  Hard.  265;  2  Str.   1403,  S. 


i 


*!l 


•2fiG 


JEnn'H    RESRRVEl)   CASRS. 


[Jiiiin  4 


C.;*R€X  V.  Broftfjhton,  2  Str.  1230;  2  Chit.  C.  L. 
312.  lie  also  observed  upon  the  case  of  Rex  v.  Knill, 
referred  to  in  2  Russ.  on  Cr.  545,  and  reported  in  a  note 
to  Rex  V.  Harris,  5  B.  &  Al.  929,  as  not  applicable,  be- 
cause it  did  not  appear  that  the  objections  were  made 
at  the  trial,  and  the  court  therefore  was  bound  to  pre- 
sume that  the  necessary  evidence  was  sent  to  the  jury, 
and  the  verdict  properly  found ;  and  upon  the  Rioters^ 
case,  referred  to  ibid.,  (and  reported  in  5  B.  &  Al.  939, 
n.)  as  inapplicable  for  the  same  reason,  and  also  as 
carrying  little  weight,  because  Chamhre,  J.,  from  whose 
note-book  it  was  taken,  expresses  in  the  same  passage 
an  opinion  in  favour  of  the  very  form  of  indictment 
which  was  held  bad  in  Rex  v,  Harris,  and  it  was  very 
probable  that  the  indictment  in  the  Rioters'  case  was  in 
that  defective  form. 


The  learned  Judge  refused  to  direct  the  jury  to  acquit 
the  prisoner,  and  told  them  that  if  they  believed  the 
evidence,  the  indictment  was,  in  his  opinion,  sustained 
in  point  of  law.  The  jury  found  the  prisoner  guilty; 
and  sentence  of  one  monti""s  imprisonment,  and  after 
that,  of  transportation  for  seven  years,  was  pronounced. 
The  prisoner's  counsel,  however,  continuing  to  entertain 
a  strong  opinion  upon  the  case,  his  lordship  subse- 
quently reserved  the  case  for  the  opinion  of  the  Judges. 


Nine  Judges  {absentibus  Woulfe,  C.  B.,  and  Penne- 
father,  B.;  Torrens,  J.,  dissentiente),  were  of  opinion 


that  th 


conviction  was  wrong. 


[June  4 

C.  L. 

.  Knill, 
I  a  note 
,ble,  be- 
"e  made 
i  to  pre- 
le  jury, 
Rioters^ 
Al.  939, 
also  as 
n  whose 
passage 
lictment 
vas  very 
e  was  in 


to  acquit 
ved  the 
ustained 
guilty ; 
nd  after 
lounced. 
entertain 
p  subse- 
!  Judges. 

d  Penne- 
■  opinion 


1839.1 


REGINA  V.  CIIARLETON. 


3C7» 


*  THE  QUEEN  v.  ALEXANDER  CIIARLETON. 


On  a  trial  for  big'amy,  where  tlio  firHt  mnrrinpc  took  place  in  Sentlond,  it  in  not 
nec('H'<ary  tlmt  the  validity  nf  tliiit  ninrriajjc  siiniild  In-  proved  liy  ii  persfin  con. 
verHunt  witli  tlic  Inws  of  Scothind;  hut  it  Ih  suirKMent  if  the  jury  helieve  tfmt 
thero  wuH  in  fict  a  vuiid  inurriii^ro  accoidinjr  to  tiie  Iuwh  of  tiiat  cuunlry. 


The  prisoner  was  tried  before  Thomas  M'Donndl,  Q.  C, 
at  the  Spring  Assizes  for  tiie  county  of  Mona(jhan, 
in  I^;j9,  for  bigamy;  the  charge  being,  that  he  married 
Mary  Carlisle,  whilst  his  former  wife,  Margaret  Pheljjs, 
was  alive. 

The  first  witness  was  Barbara  Kirk,  who  stated  that 
she  knew  the  prisoner  Alexander  Charletun;  she  also 
knew  Margaret  Phelps;  was  present  at  the  marriage  of 
the  prisoner  and  Margaret  Phelps,  at  Dnmfcrli?ie,  in 
Scotlatid,  in  the  year  1824;  they  were  first  proclaimed; 
they  were  married  by  Mr.  Thompson,  the  clergyman  of 
the  parish  of  Duinferline;  they  stood  and  took  one  an- 
other's hands,  and  then  Mr.  Thomjjson  pronounced  the 
blessing,  and  declared  them  man  and  wife  before  God 
and  man;  it  took  place  in  Mr.  T1mnpson\s  (the  minis- 
ter's) house;  was  called  on  by  the  prisoner  himself  to  be 
a  witness  to  the  marriage;  Mr.  Thompson  called  his 
servant  maid  down,  and  said  there  were  too  few  tliere; 
saw  them  married  and  bedded;  saw  them  after  their 
marriage;  they  lived  at  Rosehank;  they  lived  afterwards 
42 


I 


'Ii 


.'3 


■p 


!i(J7 


Ji;nn's  ri;si:rved  cases. 


[Junu  4 


as  man  and  wife  for  twelve  years;  the  jjrisoner  called 
her  Mrs.  Char/don.  On  being  cross-examined,  this 
witness  said,  that  the  marriage  was  in  the  minister's 
house,  and  not  in  the  kirk;  witness  had  lodged  in  the 
same  house  with  Alexander  Charklott,  before  the  mar- 
riage, for  six  months ;  Roschank  was  three  miles  off  from 
where  witness  lived;  witness  did  not  see  them  after  that 
night  for  some  years;  did  not  recollect  whether  she  saw 
them  more  than  four  times  during  the  twelve  years. 

[*26S]  The  second  witness  was  William  Clarke, 
who  said  that  he  was  the  son  of  Margaret  Phelps ;  she 
was  then  called  Mrs.  Clarke;  his  father  was  dead;  she 
and  the  prisoner,  Alexander  Charletofi,  afterwards  lived 
together  as  man  and  wife;  they  commenced  to  live  to- 
gether in  1824;  before  that,  she  bore  the  name  of  Mrs. 
Clarke,  and  afterwards  the  name  of  Mrs.  Charleton; 
heard  her  addressed  by  that  name,  and  by  the  prisoner 
himself;  they  lived  in  the  same  house  together  for  about 
twelve  years.  The  prisoner  left  the  house  in  which  he 
lived  about  two  years  ago. 


The  third  witness  was  the  Rev.  John  Blakeney,  who 
stated  that  he  was  a  clergyman  of  the  Presbyterian 
church  in  Monaghan;  he  received  his  collegiate  educa- 
tion in  Glasgow,  for  four  sessions,  in  order  to  qualify 
him  for  the  Presbyterian  church.  He  was  then  asked 
whether  he  was  acquainted  with  what  constituted  a 
valid  marriage,  according  to  the  laws  of  Scotland. — 


isnn; 


REOTNA   p.  rilARLKTON. 


9fi8 


R.  Holmes,  for  the  prisoner,  objected  that  the  witness  was 
not  competent  to  prove  the  law  of  Scotland,  whicii  could 
only  be  done  by  a  person  who,  from  his  education,  was 
presumed  to  be  conversant  with  that  law.  The  learned 
Judge  thought  the  evidence  inadmissible,  and  it  was 
rejected. 

A  book,  purporting  to  contain  extracts  of  the  ecclesi- 
astical discipline  in  the  Scotch  cluirch,  was  then  handed 
to  the  witness,  in  order  to  prove  therefrom  the  law  of 
marriage  in  that  church;  this  was  also  objected  to,  and 
the  learned  Judge  rejected  it. 

The  fourth  witness  was  the  Rev.  William  Henry 
Pratt,  who  stated  that  he  was  rector  of  the  parish  of 
Donogh  in  the  county  of  Monaghan,  and  had  been  so  for 
twenty-three  *  years;  he  celebrated  a  marriage  [*269] 
between  the  prisoner  and  Mai'ij  Carlisle,  on  the  24th  of 
February,  1838,  in  the  parish  church  of  Glasslough,  in 
the  county  of  Monaghafi;  witness  produced  the  parish 
register,  and  read  an  entry  of  the  marriage  therein  by 
witness,  by  license,  which  entry  was  signed  by  the  pri- 
soner and  Many  Carlisle.  On  being  cross-examined,  he 
said  that  he  had  not  his  license  in  court;  did  not  know 
whether  the  parties  were  Protestants;  knew  the  woman 
for  several  years;  she  was  a  Presbyterian. 


The  fifth  witness  was  William  Walker,  who  said  that 
he  was  clerk  of  the  parish  of  Donogh;  proved  his  hand- 


2f)9 


JEBB'S   RESERVED   CASES, 


[June  4 


writing  to  the  entry  of  the  marriage;  was  present  at  the 
marriage  of  the  prisoner  and  Mary  Carlisle. — Tiie  case 
for  the  crown  here  closed.  • 


Holmes,  for  the  prisoner,  submitted,  that  the  first 
marriage  having  taken  place  in  Scotland,  it  was  neces- 
sary to  prove  that  it  was  a  valid  marriage  according  to 
the  laws  of  that  country,  which  could  only  be  proved 
by  a  person  conversant  with  those  laws;  and  that  as  no 
legal  evidence  had  been  given  to  shew  that  it  w^as  a 
valid  marriage  according  to  the  law  of  Scotland,  the 
learned  Judge  should  direct  the  jury  to  acquit  the  pri- 
soner. But  after  consulting  with  Burton,  J.,  on  the 
point,  the  learned  Judge  left  the  case  to  the  jury,  with 
a  direction  that  as  there  was  no  controversy  as  to  the 
second  marriage,  the  question  they  would  have  to  con- 
sider was,  as  to  the  fact  of  the  first  marriage;  that  in 
order  to  constitute  the  offence  of  bigamy,  it  was  neces- 
sary that  there  should  have  been  a  previous  valid 
marriage  according  to  the  law  of  Scotland;  and  that  if 
they  believed  upon  the  evidence  that  there  was  in  fact 
a  marriage  between  the  prisoner  and  Margaret  Phelps, 
[*270]  according  to  the  law  of  *  Scotland,  they  should 
find  the  prisoner  guilty ;  if  not,  they  should  acquit  him. 


The  jury  found  the  prisoner  guilty;  but  the  learned 
Judge  reserved  the  point  on  the  objection  taken  by 
Holmes,  and  on  his  application  and  on  the  consent  of 
the  crown,  the  prisoner  entered  into  security  to  appear 


^ 


1839.] 


REGINA   ».   OULAGIIAN. 


370 


at  the  next  assizes,  and  surrender  himself  to  abide 
judgment. 

Eight  Judges  ( Woulfe,  C.  B.,  and  Pennefather,  B., 
being  absent;  Foster,  B.,  and  Perrin,  J.,  dissentientih-  .y.) 
held  that  the  conviction  was  right  (a). 


(a)  Seo  this  ciise  ro[)ijrtcd  upon  other  points,  in  1  Cr.  &.  Dix's  Circuit  Cuscs, 
SIS;  and  2  Jcbb  &.  S.  54. 


THE  QUEEN  v.  WILLIAM  OULAGHAN. 


After  the  prisoner  had  been  given  in  charge,  it  appeared  that  the  prosecutrix,  a 
cliild  of  four  years  of  age,  did  not  sufficiently  understand  the  nature  of  an  oath; 
and  it  was  admitted  on  the  part  of  the  crown,  that  the'e  was  no  other  evidence 
to  sustain  the  case.    Held,  tiiat  tlie  prisoner  was  entitled  to  an  acquittal. 

The  prisoner  was  indicted  at  the  commission  of  Oyer 
and  Terminer  and  general  gaol  delivery  for  the  city  of 
Dublin,  at  Green-street,  in  April,  1839,  for  that  he,  on 
the  -^Sth  of  January,  1839,  did  assault  Anne  Watson,  of 
the  age  of  four  years,  with  intent  to  carnally  know  and 
abuse  h«r,  against  the  peace  and  statute.  The  second 
count  was  for  a  common  assault. 


The  jury  were  sworn,  and  the  traverser  was  given  in 
charge ;  but  Ixjfore  any  witness  was  sworn,  it  appeared 


270 


JEBB'S    RESERVED   CASES. 


[June  4 


that  the  child  {Anne  Watson,)  who  was  produced  as  a 
witness,  was  an  infant  of  about  four  years  of  age,  and  it 
did  not  appear  to  the  court  that  she  sufficiently  under- 
stood the  nature  of  the  oljligation  of  an  oath.  The 
[*271]  Court,  after  a  *  careful  examination  of  the  child, 
ultimately  decided  that  she  should  not  he  sworn.  On 
the  part  of  the  prosecution,  an  application  was  made 
that  the  jury  should  be  discharged,  and  the  case  allowed 
to  stand  over  till  the  child  should  be  further  instructed 
as  to  the  nature  and  obligation  of  an  oath. 

On  the  part  of  the  prisoner  it  was  insisted,  that 
having  been  given  in  charge  to  the  jury,  he  was  enti- 
tled to  his  acquittal. 

The  counsel  for  the  crown  admitted  that  they  had 
no  evidence  to  sustain  the  case,  unless  the  court  should 
allow  An7ie  Watson  to  be  sworn  as  a  witness.  The 
court  ultimately  determined  upon  reserving  the  case 
for  the  consideration  of  the  Judges,  and  discharged  the 
jury,  obliging  the  prisoner  to  enter  into  a  recognizance, 
with  sufRcient  sureties,  (which  he  did,)  to  appear  to 
take  his  trial  at  the  next  commission,  if  required  so  to 
do.  Richards,  B.,  one  of  the  Judges  who  presided  at 
the  commission,  submitted  the  case  to  the  Twelve 
Judges,  in  order  to  ascertain  whether  in  their  opinion 
the  traverser  was  entitled  to  his  acquittal,  or  whether 
the  Court  was  justified  under  the  circumstances  in  dis- 
charging the  jury,  and  whether  they  were  authorized  to 


1839.]     CLARE   PRESENTMENT,   OFFICERS'   FEES.        271 

bind  over  the  traverser  to  appear  and  take  his  trial  at 
the  next  commission;  and  if  the  Judges  at  the  commis- 
sion were  wrong  in  not  directing  the  jury  to  acquit  the 
traverser,  what  course  should  then  be  pursued? 

Ten  Judges  ( Woulfe,  C.  B.,  and  Penncfather,  B., 
being  absent,)  unanimously  gave  their  opinion  that  the 
prisoner  ought  to  have  been  acquitted,  and  that  he 
should  be  recommended  for  a  pardon. 


S.  p.  Rex  V.  Wade,  1   Moody,  86.    See  also  Koscoc  on  Criminal  Evidence,  p. 
115,  Sharswood's  Ed.  Phil.  1841). 


1 


IN  the  Matter  of  OFFICERS'  FEES   upon  ROAD  [*:;J73] 

TRAVERSES. 


i'M 


A  fee  to  the  judge's  crier,  upon  tlie  entry  of  each  road  traverse  for  damages,  is 
Icfral,  notwithstanding  tlic  6  &,  7  W.  4,  c.  116,  s.  110.  Qucrre  as  to  the  legality 
of  a  fee  to  the  cleEk  of  the  ctown  under  the  same  circumstances. 


At  the  Spring  Assizes  for  the  county  of  Clare,  in  1839, 
and  also  ar  the  Summer  Assizes  of  1S38,  a  question  was 
raised  before  Richards,  B.,  by  Sir  Lucius  O'Brien,  bart., 
foreman  of  the  urand  jury,  in  respect  to  the  right  of  the 
clerk  of  the  crf'wn  to  charge  a  fee  of  one  guinea  upon 
tiie  <'ntT\  (  :h  traverse  for  damages  upon  certain 
new  lines  of  road  laid  out  in  that  county.     In  order  to 


1 


373 


JEDB'S   RESERVED   CASES. 


[June  26 


submit  the  matter  to  the  consideration  of  the  Judges, 
the  learned  Baron  requested  the  clerk  of  the  crown  for 
the  county  of  Clare  to  send  him  a  statement  of  the 
grounds  upon  which  he  rested  his  claim  to  the  fee  ir. 
question,  which  he  accordingly  did  (a),  and  upon  read- 


(a)  Tlicsc  grounds  were  substantinlly  tlic  same  ns  tlioso  urged  in  tlie  case  of  the 
Fermanagh  Road  Traverse,  ante,  222.  The  statement  concluded  with  a  copy  of  a 
case  laid  before  Jonathan  Henn,  Q.  C,  and  his  opinion  t!;ereon,  wliich  were  as 
follows : — 

Case  on  behalf  of  Mr.  George  Sampson,  clerk  of  tlic  crown,  Co.  Clare,  for  the 
opinion  of  counsel  on  the  following  question : — 

"When  a  traverse  for  damages  was  entered  by  any  person  with  the  clerk  of  tlie 
crown,  it  was  and  has  been  always  the  custom  for  the  person  so  entering  such 
traverse  to  pay  the  clerk  of  the  crown  a  fee  of  One  Guinea  for  entering  same, 
bringing  it  forward  for  trial,  recording  the  finding  of  the  jury,  and  cerlifying  same 
to  the  treasurer.  Tliis  fee  has  of  late  been  disputed,  and  querist  wishes  to  be 
informed  if  ho  has  a  right  still  to  charge  it.  Querist  does  not  know  under  what 
stututc  this  fee  has  been  charged,  but  it  has  been  paid  according  to  long  usage  and 
custom,  and  some  of  the  Judges  said  it  was  a  fee  given  by  ancient  usage  and 
custom.  Mr.  liaron  Pennefallier,  when  the  question  was  brought  before  him  at 
an  Assizes  in  Limerick,  gave  his  opinion  that  the  officer  was  entitled  to  the  fee  by 
usage  and  custom,  although  there  may  not  be  any  legislative  enactment  to  warrant 
it.  Querist  refers  to  some  of  the  statutes  relative  to  traverses:  36  Geo.  III.  c.  55, 
s.  4,3;  3  &,  4  Wm.  IV.  c.  78,  s.  52;  C  &  7  Wm.  IV.  c.  116,  s.  133  (general  tra- 
verses),  s.  134  (for  damages)." 

OPINION. 

"  As  to  the  fee  of  one  guinea  for  traverses,  that  can  be  only  claimed  (if  at  all) 
on  travor«('s  for  damages;  no  fee  can  be  claimed  upon  traverses  given  by  s.  133  of 
the  6  &  7  Wm.  IV,  If  this  fee  of  one  guinea  has  been  usually  received  as  the 
f^:  on  traverses  for  damages  ever  since  they  were  introduced  by  the  statute,  I  think 
till'  clerk  of  the  crown  is  now  entitled  to  demand  it,  although  I  cannot  find  any 
statute  ciprcssly  conferring  the  right  to  receive  this  fee;  but  several  acts  have 
rccoi;ni/r(l  the  riglit  of  officers  to  fees  not  given  by  any  statute,  and  if  I  mistake 
nnf,  eoMipensi'.tion  has  been  allowed  from  time  to  time  for  such  fees.  I  find  by  an 
old  statute,  4  Geo.  1.  c.  8.  s.  J,  which  has  not,  that  I  know  of,  been  repealed,  that 
all  orticers  are  required  by  the  1st  section,  on  or  before  the  25tli  of  March,  1718,  to 
return  to  Ihe  clrrk  of  the  council  a  list  or  table  of  all  fcca  claimed  to  be  due  and 
piiyiiblc  to  them.  But  by  s.  3  all  clerks  of  the  crown  are  required  to  set  up  a 
duplicate  of  the  list  of  fees  in  open  court.    Has  this  not  been  latterly  complied 


[June  26 

udges, 
wn  for 
of  the 
fee  in 
a  read- 


3asc  of  the 
I  copy  of  a 
li  were  as 


re,  for  the 

ilcrk  of  tlie 
Icring  such 
iring  same, 
fyiiig  same 
ishes  to  be 
under  what 
'  usage  and 
,  usage  and 
fore  him  ut 
u  tlie  Jet!  by 
t  to  warrant 
J.  III.  c.  55, 
general  tra- 


1839.]     CLARE   PRESENTMENT,   OFFICERS'   FEES.        272 

ing  over  this  statement,  the  learned  Baron  observed  that 
his  crier  had  received  a  fee  of  *  five  shiUings  [*273] 
upon  each  of  the  traverses.  The  questions  reserved, 
therefore,  were,  first — whether  the  clerk  of  the  crown 
is  entitled  to  the  fee  of  one  guinea,  or  to  any  other  fee, 
upon  the  entry  of  traverses  for  damages  with  him; 
reference  being  had  to  ss.  110,  112,  133,  and  134,  of 
6  &  7  Wm.  IV.  c.  116,  and  schedule  S.  to  that  Act 
annexed ;  secondly,  whether  the  judge's  crier  is  entitled 
to  the  fee  of  five  shillings,  or  to  any  other  fee  upon  such 
traverses;  reference  being  had  to  s.  110  of  6  and  7  Wm. 
IV.  c.  116,  and  schedule  S.  of  that  Act. 

Eight  Judges,  {Woidfe,  C.  B.,  DoTierty,  C.  J.  C. 
Pleas,  Pennefather,  B.,  and  Perrin,  J.,  being  absent,) 
unanimously  held  that  they  would  not  decide  sum- 
marily upon  the  claims  of  the  clerk  of  the  crown ;  and 
that  as  to  the  fee  of  the  crier,  it  was  legal,  as  already 
decided  upon  a  case  reserved  by  Bushe,  C.  J.,  in  1837  {a). 


A  (if  at  all) 
ly  a.  133  of 
Bivcd  as  the 
itutc,  I  tliink 
lot  find  any 
al  acts  have 
if  I  mistake 
I  find  by  an 
epcalcd,  that 
rch,  1718,  to 
3  be  due  and 
to  set  up  a 
irly  complied 


with  ?  perhaps  some  of  the  lists  originally  returned  by  the  clerks  of  the  crown 
might  be  discovered  on  a  search  in  the  proper  office.  I  do  not  know  whetlier  the 
papers  of  this  office  have  been  preserved,  nor  wliether  tlicy  arc  accessible,  but  I 
■hould  recommend  the  querist  to  have  some  inquiry  made  in  order  to  see  whctlicr 
tills  fee  was  tiien  claimed  for  any  similar  duty." 

"JONATHAN  HENN." 

(a)  Vide  ante,  222. 


■1 

m 


43 


'V^ 


•271 


JEBB'S   RESERVED   CASES. 


[June  26 


*IN   the   Matter  of  a   Presentment  for   SURGEONS  of  the 
COUNTY  CLARE  INFIRMARY. 

A  presentment  of  JC300  a  year  for  two  surgeons  of  a  county  infirmary,  out  of  the 
funds  of  tlie  institution  (wliich  funds  conHistcd  of  money  supplied  by  present- 
ment, of  public  money  under  the  5  G.  3,  c.  20,  and  of  subscriptions),  is  illegal. 

At  the  Spring-  Assizes  for  the  county  of  Clare,  in  1839, 
a  presentment  was  claimed  for  the  House  of  Industry, 
and  the  Grand  Jury  granted  a  sum  of  £600  under  the 
6  and  7  Wm.  IV.  c.  116,  s.  85,  for  the  support  of  that 
institution,  until  the  Summer  Assizes  of  1839. 


On  looking  into  the  accounts  of  the  institution,  which, 
by  the  85lh  section  of  the  Act,  are  directed  to  be  laid 
before  the  presenting  sessions,  &c.,  Richards,  B.,  (the 
Judge  of  Assize,)  observed  that  the  surgeons  to  the 
infirmary  (two  having  been  appointed,)  were  allowed 
out  of  the  funds  of  the  institution  £300  a-year,  viz., 
£  150  a-year  to  each.  The  funds  of  the  institution  con- 
sisted, first,  of  annual  subscriptions  and  donations; 
secondly,  of  money  granted  by  presentment  under  the 
85th  section  of  the  6  &  7  Wm.  IV.  c.  116;  thirdly,  of 
£94  a-year,  under  the  86th  section  of  the  same  Act; 
and  fourthly,  of  £  100  a-year  Irish,  out  of  the  consoli- 
dated fund,  under  the  5  Geo.  III.  c.  20,  s.  5.  It  ap- 
peared that  the  presentment  for  £94  a-year,  (that  is, 
£47  at  each  assizes,)  under  s.  86  of  the  Grand  Jury  Act, 


1 26 


1839.]        CLARE    PRESENTMENT,   INFIRMARIES. 


271 


was  not  paid  over  specifically  to  the  surgeons  of  this 
infirmary,  but  was  received  by  the  treasurer  and  brought 
to  the  general  credit  of  the  institution,  and  formed  part 
of  the  general  funds  out  of  which  the  surgeons  received 
£300,  as  before  mentioned;  neither  was  the  £100  a- 
year  Irish,  which  was  paid  at  the  treasury  under  the 
5  G.  III.  c.  20,  s.  5,  received  by  the  surgeons  themselves, 
but  by  the  treasurer,  and  by  him  brought  to  the  general 
credit  of  the  institution. 


*  The  5  G.  III.  c.  20,  was  tlie  Act  that  estab-  [*275] 
lished  county  infirmaries  throughout  Ireland,  and  it 
appeared  to  the  learned  Baron,  by  the  5th  section  of 
that  Act,  that  the  legislature  did  not  at  that  time  con- 
template or  intend  that  the  surgeon  to  such  an  institu- 
tion should  receive  more  than  the  £  100  a-year  Irish. 
On  the  passing  of  the  late  Grand  Jury  Act,  6  &  7  Wm. 
IV.  c.  116,  the  legislature  permitted  (by  s.  86,)  a  sura 
of  £47,  at  each  assizes,  to  be  raised  by  county  present- 
ment, and  paid  over  to  the  surgeon  of  the  county  infir- 
mary; but  by  the  same  section  it  is  declared,  that  the 
surgeons  of  the  infirmary  or  hospital  shall  not  be  entitled 
to  any  presentment  for  the  above-mentioned  sum  of 
£  47,  unless  such  surgeon  "  shall  have  given  his  attend- 
*'  ance  and  professional  assistance  without  any  other  or 
"  further  fee  or  reward  to  the  prisoners  and  others  in 
"the  gaol  of  the  county,"  &c.  There  was  a  physician 
to  the  gaol  at  a  salary  of  £46  3^.  Id.  a-year  British. 
The  surgeons  to  the  county  of  Clare  infirmary  were  in 


t  i 


T 


275 


JEBB'S  RESERVED  CASES. 


[June  Q6 


the  habit  of  being  called  in  to  attend,  and  of  attending 
the  prisoners  in  the  gaol,  as  occasion  required.  The 
learned  Baron  doubted,  however,  whether  the  appro- 
priating so  very  large  a  sum  as  £000  a-year  to  the 
surgeons  of  the  infirmary  of  a  second  class  county,  out 
of  the  funds  of  that  institution,  way  not  at  variance  with 
the  intent  and  meaning  of  the  5  Geo.  III.  c.  20,  and 
6  &  7  Wm.  IV.  c.  116.  In  the  county  of  Kerry,  also  a 
second  class  county,  the  surgeon  to  the  infirmary  never 
received  any  thing  from  the  funds  of  the  institution,  or 
from  the  county,  but  merely  £  100  a-year,  Irish,  under 
the  5  Geo.  III.  c.  20,  s.  6. 


The  learned  Baror  therefore  reserved  the  following 
questions  for  the  consideration  of  the  Judges :  first,  were 
the  surgeons  of  the  county  of  Clare  infirmary,  under 
[*276]  the  *  circumstances  above  ct«ted,  entitled  to  the 
sum  of  £47,  under  s.  86  of  the  Act,  or  should  the  Court 
have  refused  to  pass  such  presentment  either  in  their 
names  or  in  the  name  of  the  treasurer  of  the  infirmary? 
Secondly,  had  the  governors  of  the  infirmary  a  power 
to  grant,  and  were  the  surgeons  of  the  infirmary  entitled 
to  receive,  any  annual  allowance  or  compensation  out  of 
the  funds  of  that  institution,  consisting,  as  it  did,  partly 
of  money  supplied  by  presentment  on  the  county,  partly 
of  public  money  under  the  6  Geo.  III.  c.  20,  and  partly 
of  subscriptions?  Thirdly,  if  the  governors  of  the 
county  infirmary  had  a  power  to  allow  what  salary  or 
salaries  they  pleased  to  the  surgeons  thereof,  was  the 


1839.] 


MEDICAL  CHARITIES,   KERRY. 


S76 


allowance  in  the  above  case  so  unwarrantably  excessive 
as  to  call  upon  the  Judge  to  refuse  to  pass  the  present- 
ment for  the  infirmary,  or  to  warrant  him  in  so  doing, 
unless  an  engagement  was  given  that  the  salaries  of  the 
surgeons  should  not  be  continued  in  future  at  so  very 
high  a  rate ;  or  had  the  Judge  any  discretion  on  the 
subject? 

Eight  Judges  {Woulfe,  C.  B.,  Doherty,  C.  J.  C. 
Pleas,  Pennefather,  B.,  and  Perrin,  J.,  being  absent,) 
unanimously  held  that  the  presentment  of  £300  a-year 
to  the  surgeons  of  the  infirmary  was  altogether  unwar- 
ranted and  illegal. 


IN  the  Matter  of  Presentments  for  DISPENSARIES  [#27"^] 
and  FEVER  HOSPITALS,  in  the  Counties  of  KERRY 
and  CLARE. 


Where  a  dispensary  has  been  established,  and  all  the  requisites  prescribed  by  sec* 
tion  81  of  the  6  &  7  W.  4,  c.  IIG,  performed,  it  is  obligatory  on  the  grand  jury 
to  make  the  presentment  required  by  that  section;  and  thay  cannot  refuse  to 
make  it,  on  the  ground  that  they  consider  it  unnecessary. 

In  the  case  of  fever  hospitals,  the  giind  jury  have  a  discrrtion  to  present  less  than 
the  amount  of  private  subscriptions,  under  s.  81  of  the  6  &  7  W.  4,  c.  116. 
Quare,  whether  they  have  any  such  discretion  in  the  case  of  ditpensarieal 

A  presentment  at  a  summer  Assizes  for  a  lunatic  asylum  dcp6t,  not  connected  with 
any  hv'isc  of  industry,  is  bad  under  s.  89  of  the  6  &  7  W.  4,  c.  116. 


Several  questions  having  been  raised  during  the  Spring 
Assizes  of  1839,  in  the  different  counties  upon  the  Mun- 


277 


JEBB'S    RESEnVED    CASES. 


[June  2G 


ster  circuit,  upon  the  construction  of  the  fi  &-  7  W.  IV. 
c.  110,  so  far  as  the  Act  relates  to  tlic  several  medical 
charities,  the  snhject  of  that  Act,  Richar<h,  B.,  submitted 
the  following  cases  and  {queries  to  the  consideration  of 


the  Judges: — 


1st  Case  (reserved  on  application  for  a  sum  of  £20 
155.  for  a  dispensary  at  Dunhe;/,  county  of  Clare;  and 
for  another  sum  for  another  dispensary  in  the  county  of 
Kerry,  under  similar  circumstances). — Where  a  sum  of 
money  has  been  advanced  ])y  private  subscription  or 
donation,  for  the  purpose  of  seating  up  or  establishing  a 
dispensary,  and  where  a  presentment  for  a  similar  sum 
has  passed  the  presenting  sessions,  and  where  the  doctor 
appointed  t,.  the  dispensary  has  lodged  with  the  secre- 
tary of  the  Grand  Jury  the  declaration  contained  in  the 
latter  part  of  the  86th  sec.  of  (5  &  7  Wm.  IV.  c.  116, 
and  where  the  amount  of  the  subscriptions  has  been 
vouched  by  the  oath  of  the  treasurer,  pursuant  to  s.  81, 
and  a  proper  certificate  obtained,  certifying  that  the 
doctor  resides  witliin  five  statute  miles  of  the  du^ 
sary ;  in  other  words,  where  all  the  formal  requisites  to 
sustain  the  application  have  been  complied  with;  is  it 
obligatory  in  such  a  case  on  the  Grand  Jury  to  grant 
the  required  presentment  under  the  81st  section  of  the 
Act? 


The  Grand  Juries  of  the  counties  of  Clare  and  Kerrij 
•[*278]  *  insisted  that  the  word  "  establishe'l  "  as  used 


June  26 

MV. 

cclical 
Tiittcd 
ion  of 


•f  £20 
e;  and 
inty  of 
sum  of 
tion  or 

lar  sum 
3  doctor 
le  secrc- 
d  in  the 
.  c.  116, 
as  been 
to  s.  81, 
that  the 
du-  •• 
lisites  to 
ith ;  is  it 
to  grant 
)n  of  the 


Ifi.W.]  MEDICAL   CIIARITIES,   KERRY.  378 

in  the  81st  section,  could  not  apply  to  a  dispensary  only 
in  progress  of  boiiit^  set  up,  and  tiiat  until  it  lias  been 
established,  and  substantial  relief  afforded  under  it,  the 
county  cannot  be  (idled  on  to  contribute.  But  qiucre, 
could  that  objection  bo  taken  at  the  assizes,  and  after 
the  presentment  had  passed  the  sessions  ? 

2d  Case. — In  the  case  of  the  dispensary  of  Lishee- 
neava,  in  the  county  of  Kerry,  it  ap[)earea  that  a  sum 
of  £88  3.?.  had  been  subscribed  by  individuals,  and  that 
£  15  of  that  sum  had  been  applied  in  fitting'  up,  pur- 
chasing medicines  for,  and  in  fact  in  estal)lisliing  the 
dispensary,  leaving  a  balance  of  subscription  in  the 
hands  of  the  treasurer  of  £73  2s.;  and  it  further  ap- 
peared that  the  formal  requisites  of  the  Act  had  been 
complied  with,  and  that  sixteen  persons  had  received 
dispensary  relief  between  the  opening  of  the  dispensary 
and  the  period  of  applying  for  a  presentment  for  the 
same  at  sessions;  and  that  a  presentment  had  passed  the 
presenting  sessions.  Many  of  the  Grand  Jury  were 
unwdling  to  pass  this  presentment,  thinking  the  dispen- 
sary in  that  neighbourhood  unnecessary.  Qmcre — was 
the  Grand  Jury  in  this  case  bound  to  pass  the  present- 
ment under  the  81st  section  of  the  Act,  or  could  they 
in  their  discretion  reject  it  ? 


ad  Kerry 
as  used 


3d  Case. — Where  the  dispensary  has  been  re^-  -arly 
established,  and  the  requisites  of  the  Act  compli  with 
in  all  respects,  and  a  presentment  for  a  particular  sum 


i 


'Ul 


■SS! 


tl 


978 


JEDB'S   RESERVED  CABES. 


[Juno  30 


"equal"  in  amount  to  the  subscriptions  approved  of  at 
sessions;  quccre,  have  the  Grand  Jury  a  right  to  reduce 
the  amount  of  such  presentment,  and  to  present  a  lesser 
sum  than  the  amount  of  the  private  subscriptions  and 
[*279]  donations;  or  are  they  *  bound  by  the  Act  (s. 
21,)  to  present  for  that  sum,  if  the  presenting  sessions 
have  approved  of  a  presentment  for  that  amount,  and 
if  such  presentment  be  in  other  respects  regular  and 
formal  ? 


4th  Case. — With  respect  to  fever  hospitals,  where  the 
presenting  sessions  htive  presented  a  sum  not  exceeding 
the  amount  of  private  subscriptions  and  donations,  pur- 
suant to  the  81st  section,  have  the  Grand  Jury  a  power 
to  reduce  that  sum  in  their  discretion,  if  they  think  it 
too  much,  or  too  wastefuUy  applied  or  disposed  of? 


5th  Case. — A  presentment  passed  the  Sessions  pre- 
vious to  the  Spring  Assizes  for  the  county  of  Kerry,  in 
1839,  for  the  sum  of  £49,  for  the  lunatic  asylum  dep6t 
in  Tralee,  under  the  89th  section  of  the  Grand  Jury 
Act.  There  was  a  district  lunatic  asylum  to  which  the 
county  Kerry  contributed  its  proportion,  by  present- 
ment, and  the  lunatic  asylum  depot,  in  Tralee,  did  not 
appear  to  be  in  any  way  connected  with,  or  under  the 
direction  of,  any  house  of  industry.  Qucere — Whether 
under  these  circumstanc  3s  the  Grand  Jury  could  pass 
a  presentment,  at  any  time,  for  such  lunatic  asylum 


ISli'J.] 


OUR  V.  LAVKRV. 


970 


depi.t,  and  could  tlioy  pass  any  such  presentment  at  the 
Sprint^  Assizes? 

Eight  Judcies  (WouJ/c,  C.  B.,  Doherty,  C.  J.  C. 
Pknis,  PerrtH,  J.,  and  Richards,  IJ.,  being  absent,) 
unanimously  agreed  U|)on  the  following  answers. — To 
the  (juestions  put  by  the  first  and  second  cases;  that 
the  Grand  Jury  were  bound  to  make  the  rc([uired 
presentments. — To  the  ([uestion  put  by  the  fourth 
case:  that  the  Grand  Jury  had  a  power  to  reduce 
the  sum. — To  the  question  put  by  the  fifth  case: 
*  that  the  presentment  in  that  case  was  bad. — [*280] 
The  consideration  of  the  third  case  was  postponed  (a). 


(a)  Sco  tlio  case  of  the  Qiicen'a  County  Dispensary  I'resentnirnts,  anir,  I'M, 
wlicrc  tliu  Huinc  qucstiun  us  tlmt  ruiHud  by  tlio  tliird  cuso  wutt  duciduU  upuu  tliu  j6 
O.  3,  c.  47. 


JOHN  ORR,  Appellant;  JAMES  LA  VERY,  Respondent. 

A  decree  was  made  for  a  plaintitT  in  a  civil  bill  replevin  on  tlio  non-appearance  of 
the  defendant.  Tiie  defendant  afterwards  appearing  during  the  sessions,  tlio 
assistant  barrister  allowed  him  to  enter  his  appearance  nunc  pro  tunc,  for  tlio 
purpose  of  appeuling,  und  in  the  mean  time  directed  the  decree  not  to  issue.  Un 
the  hearing'  of  the  appeal,  the  |)laintitr  admitted  he  had  no  evidence,  and  the 
decree  was  reversed.  Held,  that  under  these  circumstances  the  Judge  before 
whom  the  appeal  was  heard  had  power  to  order  the  replevin  bond  to  be  ossigncd 
to  the  defendant,  under  the  G  &,  7  W.  4,  c.  7.5.  ss.  13,  14. 


This  was  an  appeal  from  a  decree  upon  a  replevin  by 
civil  bill  brought  by  the  respondent  under  the  statute 
44 


S80 


JEBB'S   RESERVED   CASES, 


[June  2G 


i 


6  &  7  Wm.  IV.  c.  75,  s.  8,  against  the  appellant,  for 
making  an  improper  distress.  On  the  hearing  of  the 
civil  bill  before  tlic  Assistant  Barrister  for  the  county 
of  A)itrim,  the  appellant  not  having  appeared,  a  decree 
was  accordingly  made  for  the  respondent;  but  the  appel- 
lant having  afterwards  appeared  (during  the  sessions,) 
to  oppose  the  respondent's  demand,  the  A.-,sistant  Bar- 
rister allowed  his  appearance  to  bo  taken  as  at  the 
hearing,  and  to  be  entered  by  the  clerk  of  the  peace, 
for  the  purpose  of  enabling  hirn  to  appeal  from  the 
decree;  and  in  the  mean  time  directed  the  decree  not  to 
issu3. 

On  the  appeal  being  called  on  before  Burton,  J.,  at 
the  Spring  Assizes  at  CarricTxfergiis,  in  1839,  both 
parties  appeared  by  their  attorneys  and  counsel,  and 
the  counsel  for  the  respondent  (the  plaintiff"  in  the  civil 
bill,)  was  called  on  to  support  his  case;  but  he  admitted 
that  he  had  no  evidence  upon  which  his  case  could  be 
[*281]  supported,  and  consccpiently  *the  decree  was 
reversed.  Napier,  for  the  appellant,  then  required  that 
the  replevin  bond  should  be  directed  to  be  assigned  to 
the  appellant,  (the  defendant  in  the  civil  bill  case,) 
under  the  6  &  7  W.  IV.  c.  75,  ss.  13,  14.  This  was 
objected  to  by  the  counsel  for  the  respondeL  ,  who  con- 
tended that  the  .Judge  iiad  no  authority  under  the  above 
circumstances  to  direct  such  an  assignment.  The  learn- 
ed Judge  reserved  the  point  for  the  consideration  of  the 
Judges. 


[June  2G 


1»39.J 


REGINA   I).   GREEN. 


281 


lit,  for 
of  tlie 
county 
decree 
I  appel- 
ssions,) 
nt  Bar- 
at  the 
peace, 
om  the 
B  not  to 


Six  Judges  out  of  eiylit  present  (WovJfc,  C.  B., 
Dolierty,  C.  J.  C.  Pleas,  Penni'father,  B.,  and  Perriii, 
J.,  beinLi:  absent;  Biislie,  C.  J.,  and  Crampon,  J.,  dis- 
sentientihus,)  held,  that  the  Judge  had  power  to  make 
the  order  in  question  for  the  assignment  of  the  replevin 
bond  {a). 


(a)  fee.  cliis  caso  rpporlcd  {nom.  On;  Appellant;  Itnverty,  Respondent)  in  1  Cr, 
&  Uix's  Circuit  Cuscs,  251. 


m,  J.,  at 
to,  both 
sel,  and 
the  civil 
admitted 
could  be 
:ree  was 
ired  that 
signed  to 
)ill  case,) 
rhis  was 
who  con- 
the  above 
?he  learn- 
ion  of  the 


THE  QUEEN  W.JOHN  GREEN. 


[*282] 


Conviction  for  forjjery.  Tim  indictment  staled,  that  the  prisoner  falsely  altered  a 
receipt  for  rent,  wliieli  previously  to  such  alteration  was  as  follows:  "  Ennis,  3d 
of  A|)iil,  Ib.'iT,  Received  frojn  J.  vV  J.  (i.  .t'7  7.s'.  Id.  on  account  of  rent,"  <.Ve. 
"as  at  fo(!t.  P.  Ciiilin.  J)ec.  .'i,  ('(ish  per  J.  (J.  t'.'i  Gs.;  Cash  this  day,  per  do. 
£\  Is.  "id.  tot;il,  f  7  7s.  7(/."  The  alleralion  was  elUcted  hy  erasiiiir  the  lines 
following  llie  words  "  i'.  Ciiiliii."  'J'lic  iiidietinent  did  not  slate  any  further 
circumstances  shouinij  lli;il  sueh  an  erasure  constiluted  a  ti)ri;iry ;  hut  it  appeared 
in  evidence  that  iv.o  separate  receipts  had  hecn  j)revi(>n;-ly  'liven  tiir  the  two 
Bums  mentioned  in  the  erased  line.-',  and  tliat  the  prisoner's  ohjeet  was  to  get 
credit  for  the  oilier  sum  as  a  separate  payment.  Ifcld,  that  tiie  conviction  was 
right.  Srmtilc,  that  reading  out  a  document,  althougli  the  party  refuses  to  s/i'iw 
it,  is  a  sullicient  uttering. 


The  prisoner  was  tried  and  convicted  before  Greene, 
Serj.,  at  the  Spring  Assizes  for  the  County  of  Clare,  in 
1830,  upon  an  indictment  for  forgery.  The  first  count 
stated  that  the  prisoner  "  feloniously  did  falsely  make, 
"  forge,  and  counierfeit,  and  feloniously  did  cause  and 


if 

I U  IS 


i 


IP 


Ri? 


f-J 


284 


JEBB'S    RESERVED   CASES. 


[June  20 


"  procure  to  be  falsely  made,  forged,  and  counterfeited, 
"  and  feloniously  did  act  and  assist  in  the  false  making, 
"  forging,  and  counterfeiting,  a  certain  receipt  and  ac- 
"  ([uittance  for  rent,  -wliicli  said  receipt  and  acquittance 
"  for  rent  is  as  follows,  that  is  to  say :  '  Ennis,  3d  of 
" 'April,  1837.  Received  from /ffwze.s  and  Jo/«i  Green 
"  *  seven  pounds  seven  shillings  and  seven  pence  ster- 
"  '  ling  on  account  of  rent  of  their  holding  at  Bealcraggy, 
"*as  at  foot.  P.  Citrtin.—£7  Is.  Id.-:  with  intent  to 
"defraud  one  Patrick  Curlhi:^  against  the  peace  and 
statute.  The  second  count  was  for  knowingly  altering 
and  publiishing  a  similar  forged  document  with  a  simi- 
lar intent.  The  third  count  stated  that  the  prisoner 
"  did  feloniously  and  falsely  alter,  and  feloniously  cause 
"to  be  altered,  &c.,  a  certain  receipt  and  acquittance 
"  for  rent,  which  said  last  monlioncd  receipt  and  acquit- 
"  tance  for  rent  was  previously  to  said  false  alteration 
"as  follows,  that  is  to  say,  ^ Ennis,  3d  of  April,  1S37. 
"'Received  from  James  and  Jolin  Green,  £1  Is.  Id. 
"  '  sterling,  on  account  of  rent  of  their  holding  at  Beal- 
"  '  craggy,  as  at  foot. 

'"P.    CURTIN. 


I  ,j 


[*283] 

"  '  Cash  per  Johi  Green, 
"  'Cash  this  day  per  do. 


"'Dec.  3,  1830, 
.      jCS     6     0 

4     1     7 


£1  Is.  Id: 
"  which  said  last  mentioned  receipt  and  acc^uittance  for 
"  rent  was  then  and  there  in  the  possession  of  the  said 


'1> 


a 


i2G 


1839.1 


REGINA  V.   GREEN. 


383 


;i 


^^  John  Green,  by  falsely  obliterating  and  erasing  the 

"following  words  and  figures; — 

"Dec.  3,  1836, 
"  Cash  per  Jo/m  Greew,        .        .        £3     6    0 
"  Cash  this  day  per  do.  .  4    17 

£1  7s.  Id. 
"  which  said  so  falsely  altered  receipt  and  acquittance 
"for  rent  is  as  follows;  'Eiinis,  3d  of  April,  1837.  Re- 
"'ceived  from  James  and  John  Green  £1  Is.  Id.  ster- 
"  'ling,  on  account  of  rent  of  their  holding  at  Bealcraggy, 
"'as  at  foot;  P.  Curtin.  £1  Is.  Idf  with  intent  to 
"defraud  the  said  Patrick  Curtin,^^  against  the  peace 
and  statute.  The  fourth  count  stated  that  the  prisoner 
having  in  his  possession  a  falsely  altered  receipt  (in  the 
same  words  as  that  stated  in  the  1st  count)  did  know- 
ingly alter  and  publish  the  same,  with  intent  to  defraud 
P.  Curtin.  The  fifth  count  charged,  generally,  the 
forging,  and  the  sixth,  the  uttering,  a  receipt  for  rent 
for  £7  7s.  7d.  with  a  like  intent. 


0 

7 


The  facts  of  the  case  were  these: — The  prisoner  and 
his  father  James  Green,  had  been  servants  to  Patrick 
Curtin,  the  prosecutor,  of  part  of  the  lands  of  Bealcraggy. 
lie  had  passed  to  them  a  stamped  receipt,  which,  as 
the  prosecutor  swore,  *  was  originally  in  these  [*284] 
words,  "Ennis,  April  3d,  1S37.  Received  from  James 
"and  John  Green  £7  7s.  7d.  sterling,  on  account  of  the 
"  rent  of  their  holding,  at  Bealcraggy,  as  at  foot. 

"P.  Curtin. 


'A 


4 


:l 


294 


JEBB'S  RESERVED  CASES. 


£3 
4 

[.Tunc  2fi 

6     0 

1     7 

£7 

7     7." 

"  1S3G,  Dec  3,  Cash  per  John  Green, 
"  Cush  this  day  per  do. 


The  prisoner'f  fatlicr  svvore  that  he  had  given  sepa- 
rate unstamped  ackno^/ledgmcnts,  one  for  the  dC3  (Ss., 
dated  Dec.  3d,  183G,  and  one  for  the  £4  1.9.  Id.  Tliesc 
were  produced  and  identified.  The  amount  of  the 
year's  rent  was  £1  Is.  Id.  In  Decernher,  1838,  the 
prisoner  made  a  tender  to  the  prosecutor  on  account  of 
the  year's  rent  due  the  1st  of  May  previous,  which  the 
prosecutor  declined  to  receive,  it  being  alleged  to  be 
short  in  amount.  On  the  18th  of  December  following, 
the  prisoner  tendered  to  the  prosecutor  a  sum  of  £2  19s. 
lOfZ.,  the  balance  of  the  rent  due  to  the  1st  of  November, 
1838,  according  m  account  furnished  by  the  prisoner ; 
claiming  certain  credits.  The  prosecutor  and  prisoner 
entered  into  the  accounts,  and  the  prisoner  produced 
documents  to  vouch  the  credits  he  claimed.  Amongst 
these  was  the  receipt  in  question.  The  prosecutor 
asked  the  prisoner  to  show  him  the  vouchers,  but  he 
said  he  would  not  show  his  papers  to  any  man  but  his 
attorney;  and  he  called  out  the  sums  which  he  alleged 
they  vouched.  In  tliis  way  he  claimed  credit  for  the 
amount  of  the  receipt  in  question,  and  also  of  the  two 
unstamped  receipts  for  the  sums  of  £3  65.  and  £4  \s. 
Id.  The  prosecutor  afterwards  saw  the  receipt  for 
£1  Is.  7d.,  and  having  obtained  possession  of  it,  handed 
[*285]  it  to  a  iioliceman.     *It  was  produced,  and  if 


[.Tunc  2('. 

)     0 

L     7 

n  scpa- 
£3  65., 

These 

of  the 
538,  the 
30unt  of 
hich  the 
3d  to  be 
)llo\ving, 
'£2  19s. 
ovember, 
prisoner ; 

prisoner 
produced 
Amongst 
»rosccutor 
•s,  but  he 
vn  but  his 
10  alleged 

it  for  the 
jf  the  two 
nd  .:G4  l5. 
■cccipt  for 

it,  handed 
ced,  and  it 


um.] 


REGINA    1).   GREEN. 


-2ii3 


appeared  tliat  tlie  two  lines  "183(5,  Dec.  3d,  cash  per 
''Jolui  Green  £3  iul,  cash  this  day  jCI  Is.  Id.;'  had 
been  erased,  and  tlio  tot.  LI  Is.  Id.,  roinaiiied  as  it 
originally  was;  and  tlu  prosecutor  swore,  that  those  two 
lines  had  been  in  the  receipt  when  ho  signed  it. 

Freeman,  for  the  prisoner,  made  two  points;  1st,  That 
there  was  no  uttering  of  the  forged  receipt  witliin  the 
meaning  of  the  Act  of  parliament  («),  the  prisoner  hav- 
ing refused  to  shew  the  receipt;  and  he  cited  Wool- 
dridije's  case  ((^),  and  Rex  v.  ShuJianJ{c),  in  which  it 
was  ruled  that  the  mere  shewinu'  of  a  foru^cd  instrument 
with  the  view  of  raicing  a  false  idea  of  a  man's  wealth 
was  not  an  uttering  within  the  13  Geo.  III.  c.  79. 
Secondly,  That  the  indictment  was  insufficient,  as  not 
containintx  an  averment  that  the  two  lines  alleo;ed  to 
have  been  erased  were  acknowledgments  or  vouchers 
for  the  payment  of  two  sums  m..  Icing  together  the  £7 
7.S-.  7d.,  and  that  such  sum  of  £7  7.">.  7d.  was  the  same 
£  7  7s.  7d.  as  appeared  at  the  bottom  of  the  receipt ;  and 
an  averment,  that  such  two  payments  were  evidenced 
by  other  receipts  wdiich  the  prisoner  had  used  as  well 
as  the  receipt  in  question,  so  as  thereby  to  attempt  to 
gain  a  double  credit.  That  the  receipt,  as  produced, 
appeared  to  be  perfect,  the  words  "as  at  foot,"  agreeing 
with  and  having  reference  to  the  £  7  7.''\  7d.  which  was 
tl).e  alleged  total  of  the  two  smaller  sums;  and  that  the 


.«)  3y  G.  3,  c.  G3,  h.  1. 


Hi)  I  Lcacli,  307. 


U-)  Utiss.  Hi.  Ky.  200. 


'  ?i 


5 1 


li^ 


285  JEBB'S   RESERVED   CASES.  [June  26 

facts  should  have  been  stated  which  shewed  the  altera- 
tion so  as  to  constitute  a  forgery ;  for  that  where  a  fact 
extrinsic  to  the  instrument  itself  is  necessary  in  order  to 
[*2S6]  shew  it  to  be  a  forgery,  such  fact  must  be  *  spe- 
cially averred,  as  in  Ilunter^s  case  («),  and  Thompson's 
case  {h). 

As  to  the  first  point,  the  indictment  having  contained 
counts  for  the  actual  forgery,  and  tlie  jury  having  found 
the  prisoner  guilty  on  all,  it  became  unnecessary  to 
decide  upon  it,  although  the  learned  Judge  thought 
there  was  a  sufficient  uttering.  The  second  question 
his  lordship  thought  it  right  to  reserve  for  the  consider- 
ation of  the  Judges;  although  the  bearing  of  his  opinion 
at  the  time  was,  that  the  indictment  was  sufficient. 

Eight  Judges  {Woulfe,  C.  B.,  Doherty,  C.  J.  C. 
Pleas,  Pemicfather,  B.,  and  Perrin,  J.,  being  a,bsent), 
unaniraous'ly  held  that  the  conviction  was  good. 


(a)  2  Loach,  C24. 


(/;)  2  Leach,  910. 


1839.] 


REGINA  V.  RODINSON. 


28G 


THE  QUEEN  v.  GEORGE  ROBINSON  and  MICHAEL 

ROBINSON. 


On  tlic  trial  of  an  accessary. before  the  fact  to  a  felony,  the  proper  evidence  of  the 
conviction  of  tiic  principal  felon  at  a  former  assizcH  for  tlie  kaaie  county,  is  u 
record  of  the  conviction,  and  not  the  crown  book. 


The  prisoners  were  tried  at  the  Summer  Assizes  ofAthij 
for  the  County  of  Ktldare,  in  1839,  before  Johnson,  J., 
on  an  indictment  charjjinjj  them  as  accessaries  before 
the  fact  to  a  burglary  and  robbery  committed  in  the 
dweUing  house  of  the  Rev.  Mr.  Roberts,  in  that  county, 
in  the  month  of  March,  1538.  The  principal  felon  (a 
man  of  the  name  of  Michael  Flanagan)  was  tried  at  the 
previous  Spring  Assizes  for  the  same  county,  on  an 
indictment  for  burglary  and  robbery,  upon  which  he 
was  found  guilty,  and  sentenced  to  transportation ;  and 
from  various  facts  and  circumstances  *  which  [*287] 
were  divulged  on  his  trial,  it  was  considered  advisable 
to  proceed  against  the  two  Robinsons  as  accessaries,  and 
they  were  accordingly  tried  as  such  at  the  subsequent 
Assizes. 


e 


The  first  piece  of  evidence  offered  on  this  trial  on  the 

part  of  the  crown  was  the  conviction  of  the  principal 

felon,  which  was  proved  by  the  production  of  the  crown- 

,  book  of  the  previous  Assizes  by  the  clerk  of  the  crown, 

containing  the  usual  entries  of  the  indictment,  plea, 

45 


r 


387 


JEBB'S  RESERVED  CASES. 


[November  30 


trial,  and  conviction  of  Flanagan  the  principal,  and  the 
subsequent  judgment  of  the  court  pronounced  upon  him. 
The  reception  of  this  evidence  was  objected  to  by  the 
counsel  for  the  prisoners,  on  the  ground  that  the  legal 
mode  of  proving  the  conviction  should  have  been  by 
the  production  of  a  record  regularly  made  up  and  attest- 
ed by  the  proper  officer.  But  on  hearing  the  arguments 
offered  by  the  counsel  for  the  crown,  who  stated,  amongst 
other  things,  that  it  had  been  the  constant  and  invariable 
practice  of  th(5  circuit,  when  the  trial  of  the  principal 
felon  had  taken  place  at  a  previous  Assizes  held  for  the 
same  county,  to  prove  the  conviction  in  the  same  man- 
ner as  it  had  been  done  in  the  present  case,  and  that 
such  evidence  had  always  been  received  by  the  court, 
the  learned  Judge  admitted  the  evidence,  and  the  pri- 
soners were  both  convicted,  on  clear  and  satisfactory 
testimony,  of  the  offence  with  which  they  were  charged. 


The  prisoners  subsequently  presented  a  memorial  to 
the  Lord  Lieutenant,  praying  their  discharge,  inasmuch 
as  they  were  advised  that  the  conviction  was  bad  in 
law;  and  the  memorial  having  been  referred  to  Johnson, 
J.,  as  the  Judge  who  tried  the  case,  his  lordship  recom- 
mended a  respite  of  the  sentence,  which  was  respited 
[*288]  accordingly,  for  *the  purpose  of  obtaining  the 
opinion  of  the  Twelve  Judges  on  the  point  made  by 
the  prisoners'  counsel,  whether  the  evidence  in  question 
ought  to  have  been  received,  and  if  it  should  not,  what 
course  should  be  taken  res^  3cting  the  prisoners. 


1840.]    OFFICERS  AT  ADJOURNED  ASSIZES,  CAVAN.    288 

Nine  Judges  [Woulfe,  C.  B.,  Torrens,  J.,  and 
Richards,  B.,  being  abse.it),  unanimously  held  that 
the  conviction  was  wrong  (a).  Johnson,  J.,  accordingly 
recommended  the  prisoners  for  a  pardon. 


(n)  The  following  autlioritics  were  nmonjrst  others  considered  hy  tiio  Judges  in 
giving  their  opinion:— 2  Phill.  Mv.  0:33.8,  (Ed.  1H38);  Peuite  on  Ev.  36,  49;  Rex  v. 
Bowman,  6  C.  &,  P.  101  (25  E.  C.  L.  p.  500);  Rex  v.  Smith,  8  B.  &  C.  341,  (IS 
E.  C.  P.  232.)— Sec  Dyer'i  Case,  ante,  198. 


IN  the  Matter  of  a  Presentment  for  payment  of  Oflficers  at  an 
ADJOURNED  Assizes,  in  the  County  CAVAN. 


The  110th  section  of  the  6  &  7  W.  4,  i.  116,  docs  not  authorize  a  presentment  to 
thr.  cierli  of  tlic  crown  or  tlic  under  sheriff  for  duties  performed  at  an  adjourned 
assizes. 


In  Spring,  1939,  the  Judges  on  the  North-West  circuit 
held  an  adjouruiid  ussizus  at  Cavan,  which  the  clerk  of 
the  crown  and  the  under-sheriff  attended,  and  performed 
their  u.sual  services  to  the  satisfaction  of  the  Court.  At 
the  Summer  Assizes  in  1839,  these  officers  applied  to 
the  Judges  for  a  presentment  for  the  duties  and  services 
performed  by  them  at  such  adjourned  assizes,  and  rested 
their  claim*  on  the  11 0th  section  of  the  Grand  Jury  act, 
6  &  7  Wm  IV.  c.  116  A  douJ/t  having  been  suggested 
on  the  construction  of  this  ejection,  fff/'rens,  J.,  respited 


m 


ii 


288 


JEDR'S    RtlSERVED   CASES. 


[February  8 


the  presentment,  in  order  to  take  the  opinions  of  the 
Judges,  whether  those  ofhcers  were  entitled  to  any,  and 
[*2S9]  what  payment,  *for  the  duties  and  services 
performed  at  such  adjourned  assizes. 

Eleven  Judges  (  Wmtlfe,  C.  B.  being  absent,)  were 
unanimously  of  opinion  that  the  officers  in  question 
were  not  entitled  to  any  payment  for  duties  and  services 
performed  at  an  adjourned  assizes  (a). 


II 


(a)  Tlic  only  construction  of  tho  II  0th  section  of  the  Act,  which  could  authorize 
the  otficcrs  to  receive  payment  for  services  at  an  adjourned  aHsizcs,  would  bo  the 
cotiHtructioii  that  "  tiuch  oflioer"  in  the  latter  part  of  the  section  meant  an  officer 
who  iiad  discharj^cd  his  duty  neg;Iigcntly  or  inHufficicntly. 

As  to  presentments  for  duties  performed  at  Special  CommitBions,  sec  section  1 13. 


IN  the  Matter  of  Presentments  of  VAGRANTS  in  the  Counties 
of  MEATH  and  CAllLOW. 


Hald,  by  eleven  Judges,  that  the  Vagrant  Acts  (6  Ann.  c.  11,  9  G.  2,  c.  6,  11  &.  12 
G,  3,  c.  30,  and  31  G.  3,  c.  44,)  apply  to  the  several  counties  in  Ireland,  and 
not  to  thu  county  and  city  of  Dublin  alone.  Held  also  by  six  Judges  to  five, 
that  those  Acts  apply  to  women  as  well  as  men. 


At  the  Summer  Assizes  for  the  Home  Circuit,  in  1839, 
two  persons,  both  females,  in  the  county  of  Meath,  and 
a  man  in  the  county  of  Carlorv,  were  presented  by  the 


irunry  8 

»f  the 
f,  and 
r vices 


)  were 
lestion 
jrvices 


authorize 
mid  bo  tlie 
an  officer 

cction  113. 


1840.1 


MEATII   PRESENTMENT,  VAGRANTS, 


869 


Counties 


.  6, 11  &  12 
Jreland,  and 
Jgcs  to  five, 


in  1839, 
ath,  and 
id  by  the 


Grand  Jury  as  vagrants,  in  the  usual  manner,  and  lu 
both  instances  the  prisoners  havin^^  traversed  the  pro- 
sentments,  and  the  cases  havinjr  come  on  to  be  tried 
before  Bushe,  C.  J.,  counsel  (not  employed  by  the  tra- 
versers, but  as  amiri  curice)  statotJ,  that  decisions  had 
been  made  on  thi.s  ^:ircuit  by  different  Judges,  within 
the  last  four  years,  some  of  whom  held  that  the  statutes 
of  6  Ann.  c.  11;  9  G.  II.  c.  G;  11  &  12  G.  III.  c.  30; 
and  31  G.  III.  c.  44,  (upon  which  the  y^ractice  for  many 
years  adopted  was  founded,)  applied  only  to  the  city 
and  county  of  Dublin;  and  others,  that  men  alone  were 
in  contemplation  of  the  legislature,  and  that  no  woman 
could  be  legally  subjected  to  such  a  proceeding.  Coun- 
sel, in  further  support  of  the  objection,  *  referred  [*290] 
to  an  opinion  of  the  late  John  Mayne,  Esq.,  in  a  note  in 
page  309  of  "  llaijeis  Crimes  and  Punishments,"  ed. 
1837. — "  Upon  the  subject  of  these  Acts  a  late  eminent 
"criminal  lawyer,  (/.  Mayne,  Esq.)  writes  as  follows: 
"  The  usual  course,  but  unauthorized  by  the  Acts,  is  to 
**  present  the  person  as  a  vagrant,  who  is  tried  upon  his 
"  traverse  as  a  matter  of  course ;  and  then,  if  the  traverse 
"be  found  against  him,  he  is  ordered  to  give  security; 
"  if  found  for  him,  he  is  discharged ;  whereas  upon  pre- 
"  sentment  alone,  he  is  entitled  to  be  admitted  to  give 
"  security.  If  he  traverse,  and  be  a  convicted  vagrant, 
"the  judgment  shall  be  transportation,  absolutely." 
No  sufficiently  accurate  information,  however,  could  be 
given,  so  as  to  enable  the  learned  Chief  Justice  to  ascer- 
tain with  precision  what  course  was  taken  by  the  Court 


! 


,1'' 


i 


V'ti' 


! 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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lit  I 

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Ccrpciratian 


13  WKT  MAIN  STMIT 

WIMTII,N.V.  14ta0 

(7l«)f73-4S0t 


990  JEBB'S   RESERVED   CASES.  [Februarys 

ia  the  cases  alluded  to  by  counsel,  whether  by  quashing 
the  presentment,  or  directing  the  jury  to  find  against  it, 
nor  could  he  obtain  an  exact  statement  of  the  decisions 
relied  upon,  of  the  reasons  given  for  them,  or  of  tho 
facts  given  in  evidence.  But  considering  it  to  be  a 
question  of  considerable  importance,  his  lordship  thought 
it  right,  with  a  view  to  future  practice,  to  bring  it  under 
the  consideration  of  the  Judges,  in  order  that  it  might 
be  settled. 

The  learned  Chief  Justice,  in  reserving  the  case,  sub- 
mitted the  following  observations : — "  The  statutes  rela- 
ting to  these  questions  are  the  6  Ann.  c.  11,  s.  1 ;  9  Geo. 
IL  c.  6,  ss.  1,  3,  &  4;  31  Geo.  III.  c.  44;  11  &  12  Geo. 
III.  c,  30.  The  practice  which  I  have  known  to  exist 
in  such  cases  for  the  last  forty  years,  and  which  I  have 
myself  been  in  the  constant  habit  of  adopting,  is  this : — 
When  a  person  is  presented  as  a  vagrant,  if  that  pre- 
sentment be  traversed,  the  practice  has  been  to  leave  it 
[*291]  to  a  petty  jury  *to  consider  whether  the  tra- 
verser is  a  person  of  no  certain  place  of  residence,  with  no 
honest  means  of  livelihood,  who  will  not  betake  himself 
or  herself  to  any  honest  trade  or  livelihood ;  and  if  so,  to 
find  for  the  presentment;  and  if  not  so,  for  the  traverse; 
and  when  the  verdict  is  against  the  traverse,  I  sentence 
him  or  her  to  be  imprisoned  for  three  months ;  at  the 
end  of  which,  if  they  cannot  give  security  for  being  of 
the  peace  and  good  behaviour  for  seven  years,  (them- 
selves generally  in  £5,  and  two  sureties  each  in  £2 


\kl 


.■■i 


1840.] 


MEATH    PRESENTMENT,  VAGRANTS. 


391 


IO5.;  and  sometimes  in  £10,  and  sureties  ii  £5,)  they 
are  to  be  transported  for  seven  years." 


in  £2 


Eleven  Judges  {Woulfe,  C.  B.,  being  absent,)  were 
unanimously  of  opinion  that  the  statutes  referred  to  were 
in  force  in  the  several  counties  in  Ireland.  Six  of  them, 
BusHE,  C.  J.,  DoHERTY,  C.  J.  C.  Pleas,  Burton,  J., 
Crampton,  J.,  Richards,  B.,  and  Ball,  J.,)  held,  that 
they  included  women  as  well  as  men;  and  the  remaining 
five  held,  that  they  applied  to  men  only;  Pennefather, 
B.,  qualifying  his  opinion,  by  adding,  "  except  perhaps 
in  the  county  and  city  of  Dublin"  (a). 

(a)  The  following  statement  by  Walter  Bourne  Esq.  (Clerk  of  tlic  Crown  of  the 
Queen's  Bench)  of  the  practice,  and  opinion  of  Edward  Tickell  Esq.,  Q,  C,  upon 
the  law,  in  ci^ses  of  vagrancy,  were  laid  betore  the  Judges,  and  considered  by  them 
during  the  discussion: 

Statement  of  Walter  Bourne,  Esq. — ^"  From  my  earliest  experience  on  this  sub- 
ject, the  practice  has  been,  that  upon  a  presentment  of  any  person  by  the  Grand 
Jury  as  a  vagrant,  a  traverse  was  allowed  to  the  party;  and  if  a  verdict  passed  .n 
favour  of  tiie  presentment,  tlie  party  was  sentenced  to  be  transported  for  seven  years, 
unless  he  or  she  should  enter  into  recognizance  with  two  sureties  (from  Lord  Carle, 
ton^s  time,  say  178!),  t!ie  sums  being  usually  £5  for  the  principal,  and  £2  10«. 
for  the  sureties)  to  be  of  the  peace  and  good  behaviour  for  seven  years;  an*!  unlcs? 
the  security  was  given  within  a  time  spccitied  (say  three  months)  then  the  m- 
was  to  be  transported.  Before  Lord  Carleton's  time,  the  period  within  wliich 
security  should  be  given  was  led  at  large,  and  security  was  taken  any  time  before 
the  sentence  was  put  into  execution ;  but  from  tiie  passing  of  tiie  Act  (31  G.  3,  c.44,) 
about  that  period,  a  time  for  giving  the  sccuiity  was  always  specified  in  the  sen- 
tence or  order." 

Opinion  of  Edward  Ticktll  Esq.,  on  the  questions,  "Whetiier  the  Vagrant  Acta 
"now  in  force  in  Ireland,  apply  to  the  several  counties  in  Ireland,  or  to  the  county 
"and  county  of  the  city  of  Dublin  alone?  and  whether  women  are  contemplated  hy 
"the  statutes  relatinff  to  vagrants'!" — "I  am  clearly  of  opinion,  that  the  powers 
given  by  the  G  Ann.  c.  1],  s.  1,  to  Grand  Juries  at  the  assizes  to  make  presentments 
"  of  loose  and  idle  vagrants,"  and  to  the  justices  of  assize,  to  grant  such  warrants 
as  are  therein  also  mentioned,  are  not  confined  to  the  county  of  the  city  and  county 
of  Dublin,  but  arc  of  general  application  to  the  several  other  counties  in  Ireland, 
By  the  6  Ann.  c.  11,  s.  1,  it  was  enacted,  that  such  vagrants,  &.c.  &c.  should,  upon 


232  JEBB'S   RESERVED  CASES.  [Februarys 

• 
the  presentments  of  the  Grand  Juries  at  the  assizes  and  at  the  prcnernl  quarter  ses- 
sions of  the  |)cacc,  and  upon  warrants  from  the  justices  of  assize,  or  justices  of  the 
peace  at  their  respective  quarter  sessions,  be  sent  to  gaol,  &c.  Tlie  9  G.  3,  c.  6,  s.  1, 
after  reciting  that  tlic  several  temporary  laws  and  statutes  therein  mentioned 
(amongst  which  is  the  above  statute  of  the  6  Ann,  c.  11,)  were  found  by  exj>ericnce 
to  be  of  general  use  and  fit  to  be  continued,  enacted,  that  the  said  statutes  and  all 
and  every  the  powers,  provisoes,  and  pcnultics  therein  contained,  witii  the  altera- 
tions and  additions  made  in  and  by  this  (tiie  said  act  of  9  G.  2)  should  continue, 
and  be  in  full  force  and  etfect,  until,  &.c.  By  the  second  section  of  this  Act  of  9  G. 
S,  the  said  powers  given  by  the  6  Ann.  to  the  Grand  Juries  at  the  assizes  an  t  at  the 
general  quarter  sessions,  are  both  recited;  but  that  given  to  the  Grand  Jurit.s  at  the 
quarter  sessions  is  stated  to  have  been  found  inconvenient,  and  by  the  third  section 
is  accordingly  taken  away  from  all  Grand  Juries  at  quarter  sessions  with  the  ex- 
ception of  those  in  the  county  of  the  city  and  county  of  Dublin.  As  the  first  sec- 
tion contained  no  recital  of  any  inconvenience  arising  from  the  power  given  to  the 
juries  at  the  assizes,  so  the  third  section  leaves  this  latter  power  untouclicd;  and  as 
the  fourth  section  declares  the  right  of  every  person  presented  "  at  the  assizes"  to 
traverse,  it  proves  beyond  a  doubt  that  the  legislature  did  not  intend  by  any  thing 
in  tills  last-mentioned  act,  to  take  away  the  said  power  of  presentment  so  given  as 
aforesaid  to  Grand  Juries  at  the  assizes.  As  however  the  said  act  of  9  Geo,  3,  s.  3, 
recited  that  there  were  great  numbers  of  loose  and  idle  vagrants  in  the  county  of  the 
city  and  county  of  Dublin,  powers  of  presentment  of  such  persons  were  thereby  also 
given  to  the  Grand  Juries  at  the  King's  bench  sessions  of  oyer  and  terminer  and 
gaol  delivery,  held  in  the  King's  courts  afler  term,  for  the  county  and  county  of  the 
city  of  Dublin,  and  by  the  third  section,  the  powers  which  had  been  previously  pos- 
sessed by  the  Grand  Juries  were  given  or  preserved  to  the  Grand  Juries  at  the 
quarter  sessions  of  those  two  last-mentioned  counties.  That  the  act  of  the  11  &  12 
Geo.  3,  e.  30,  which  was  passed  for  the  relief  of  the  impotent  poor,  and  the  restraint 
of  vagrants,  did  not  operate  as  an  actual  or  implied  repeal  of  the  6  Ann.,  is  manifest, 
from  this  latter  statute  having  been  so  far  as  relates  to  the  presentment  of  loose 
■nd  idle  vagrants  revived  afler  it  had  expired,  and  made  perpetual  by  the  31  Geo.  3, 
c.  44;  and  it  may  bo  further  observed,  that  if  the  9  Geo,  2  had  operated  to  repeal 
the  powers  given  by  the  G  Ann.  to  Grand  Juries  at  the  assizes,  (as  it  clearly  did 
with  respect  to  the  powers  of  Grand  Juries  at  the  quarter  sessions,)  no  part  of  the 
6  Ann.  relating  to  the  presentment  of  vag^'ants  would  have  been  revived  and  made 
pei'petual  as  before  mentioned  by  the  said  act  of  the  31  Geo.  3. 

"  On  the  next  question,  '  whether  females  are  subject  to  the  provisions  of  the 
6  Ann.';  I  am  of  opinion  that  they  arc,  and  should  be  equally  clear  on  this  point  as 
on  the  former,  were  it  not  for  the  decision  of  Mr.  Baron  Foster,  in  the  Queen  v. 
Adams,  as  reported  in  1  Cr.  &  Dix's  Circuit  cases,  140.  The  following  arc  the  classes 
of  persons  described  in  the  statute.  'All  loose  and  idle  vagrants  and  such  as  pre- 
tend to  be  Irish  gentlemen,  and  will  not  betake  themselves  to  any  honest  livelihood, 
but  wander  about  demanding  victuals  and  coshering  from  house  to  house,  and  also 
all  loose  and  idle  persons  of  infamous  lives  and  characters.'  The  statute  of  9  Geo.  II. 
by  its  second  section  recites,  that  by  virtue  of  the  above  statute  of  the  6  Ann.  upon 
presentment  of  the  Grand  Ju'ies  at  the  Assizes,  &c.,  'of  any  loose  or  idle  vagrants 


(I 


ibruary  8 

artcr  ses- 
:c8  of  the 
!,c.6,8.1, 
ncnlioncd 
;x|icricnce 
Ics  and  all 
tlic  altera- 
1  continue, 
Vet  of  9  G. 
an  1  at  the 
urit.s  at  the 
lird  section 
n\h  the  cx- 
lic  first  sec- 
Tivcn  to  the 
lied;  and  as 
1  assizes"  to 
ly  any  thing 
,  so  given  as 
Geo.  2,  s.  2, 
jounty  of  the 
thereby  also 
terminer  and 
eounty  of  the 
cviously  pos- 
furies  at  the 
^thell&12 
I  the  restraint 
.,  is  manifest, 
ment  of  loose 
lhe3lGco.3, 
itcd  to  repeal 
it  cleiirly  did 
10  part  of  the 
vcd  and  made 

/isions  of  the 
I  this  point  as 
the  Queen  v. 
are  the  classes 
d  such  as  pre- 
lest  livelihood, 
lOusc,  and  also 
tcof9Gco.II. 
c  6  Ann.  upon 
idle  vagrants 


1810] 


MEATH  PRESENTMENT,  VAGRANTS. 


293 


or  such  as  would  not  work  or  betake  themselves  to  an  honest  livelihood,  or  of  loose 
persons  of  infamous  lives  and  characters,'  such  persons  were  to  be  sent  to  p'aol,  &e., 
and  it  (the  9  Geo.  2,)  then  procrcds  to  give  to  the  Grand  Juries  at  the  King's  Bench, 
&c.,  powers  to  preset  precisely  the  same  dc«cription  of  persons,  namely,  'AH 
loose  and  idle  vagrants  and  such  as  would  not  work  and  belukc  themselves  to  an 
honest  livelihood,  and  all  loose  persons  of  infamous  lives  and  churaclers.'  Now,  if 
under  these  latter  words  so  contained  in  the  9  Geo.  2,  females  might  be  presented 
by  the  Grand  Juries  ut  the  King's  Dench,  &e.  in  the  eounty  of  the  city  and  county 
of  Dublin,  there  can  l^c  no  reason  why  they  might  not  ))c  equally  presented  at  tlio 
Assizes  under  the  G  Ann.,  the  Grand  Juries  there  having,  according  to  the  above 
rccilal,  powers  to  present  the  same  classes  of  persons  as  arc  mentioned  in  the  9  G.2; 
and  that  females  were  contemplated  by  the  legislature  as  falling  under  the  operation 
of  both  statutes,  is,  I  think,  manifest  from  the  terms  of  the  4lh  section  of  the 
9  Geo.  2.  This  clause  begins  by  reciting  that  a  doubt  had  been  conceived  whether 
persons  so  presented  by  any  Grand  Jury,  (presentments  by  Grand  Juries  at  the 
Assizes  had  been  previously  mentioned  in  the  second  section  of  said  Act,)  had  a 
light  to  traverse.  It  tiicn  enacts  and  declares  that  it  shall  be  lawful  for  every  per- 
son or  persons  so  presented  by  any  Grand  Jury  at  the  King's  Bench  Assizes,  &c. 
to  traverse  such  presentment,  if  he,  she,  or  they  shall  think  fit,  and  by  tlie  latter 
part  of  the  same  section  it  provides,  that  if  such  traverse  should  be  found  against 
liim,  her,  or  them,  then  such  person  shall  be  sent  on  board  the  fleet,  or  be  trans- 
ported, &c.  It  was  argued  in  a  case  reported  in  a  note  to  the  before-mentioned 
case  of  the  Queen  v.  Adams,  that  the  6  Ann.  refers  alone  to  loose  and  idle  vagrants, 
pretending  to  be  Irish  ^enf/emen ;  but  this  is  not  so,  it  goes  much  further;  it  em- 
braces, according  to  the  9  Geo.  II.  all  loose  and  idle  vagrants,  and  all  loose  persons 
of  infamous  lives  and  cliarncters;  and  by  the  31  Geo.  3,  the  statute  of  Anne  was,  so 
far  as  it  regarded  the  presentment  of  loose  and  idle  vagrants,  with  the  alterations 
and  additions  made  by  the  9  Geo.  2,  revived  and  made  perpetual.  Tiiese  two  sta- 
tutes, theretbre,  so  far  as  regardj  the  presentment  of  vagrants,  ought  now  to  bo 
looked  upon  cs  one,  and  it  is  impossible,  in  my  opinion,  to  apply  a  rule  of  construc- 
tion to  the  one,  which  ought  not  to  be  equally  applied  to  the  other.  Both  were 
diiceled  principally  against  vagabonds,  and  that  such  persons  were  liable  to  be 
tiausported  under  the  6  Ann.,  appears  from  tlie  provision  in  the  latter  end  of  tho 
2d  sec.  of  9  Geo.  2,  subjecting  those  who  were  presented  by  Grand  Juries  in  the 
county  and  city  of  Dulilin,  and  who  broke  gaol,  &c.,  to  the  same  presentment  as 
vagabonds  ordered  to  be  transported  at  the  assizes.  It  is  also  argued  in  the  before 
mentioned  note,  that  the  punishment  of  l)eing  sent  on  board  the  Fleet  is  not  appli- 
cable to  females,  and  that  therefore  the  statute  of  6  Ann.  ought  not  to  be  extended  to 
them;  but  the  same  oI>jeetion  would  apply  to  extending  to  them  the  9  Geo.  2,  in 
which  the  presentments  arc  exactly  the  same  as  those  in  the  6  Ann.,  viz.  being  sent 
on  board  the  Fleet,  or  transportation.  In  the  same  note  it  is  also  argued  that  be- 
cause the  statute  of  II  &  12  Geo.  .1,  c.  30,  eontsined  enactments  against  strolling 
prostitutes,  and  provided  specific  penalties  for  llicm,  therefore  such  persons  ore  not 
subject  to  those  penalties  contained  in  tiie  6  Ann.  The  clause  alluded  to  in  the  II 
&  12  Geo.  3,  is  the  Sth  section,  which  enacts,  that  the  corporations  therein  men- 
tioned might  and  were  thereby  required,  as  soon  as  they  should  have  funds  for 

46 


i 


w 


lis 


1 


394 


JEBB'S  RESERVED  CASES. 


[February  8 


building  and  furnishing  houses  of  industry,  to  tal<c  into  those  houses  so  many  va- 
grants, sturdy  beggars,  and  vngnbonds,  to  be  kept  at  liard  labour,  and  so  many 
helpless  poor,  as  their  funds  would  admit  of:  and  tlie  said  corporations  were  au- 
thorized and  requited  to  seize  every  sfrolling  vagrant  capable  of  lubour,  ivho  had 
no  place  of  abode,  and  who  did  not  live  by  his  or  her  labour  or  industry,  and  every 
person  above  the  age  of  fifteen,  begging  without  a  license,  and  every  strolling  pros- 
titute capable  of  labour,  and  to  commit,  &c.  Now,  if  vagrant  prostitutes,  because 
they  are  included  in  this  act,  were  to  be  exempted  from  the  operation  of  the  6  Ann. 
and  of  the  9  Geo.  3,  so  equally  ought  every  male  strolling  vagrant  capable  of  labour, 
who  had  no  place  of  abode,  and  who  did  not  live  by  industry;  but  such  effect  has 
never  been  given  to  the  11  and  12  Geo.  3,  an  Act  which  in  truth  has  remained  a 
dead  letter  since  it  was  passed.  Confu^iion  has  been  occasioned  by  considering  the 
6  Ann.  so  far  as  it  relates  to  the  presentment  of  vagrants,  as  one  of  a  set  of  Acts 
commencing  with  the  6  &  9  of  VVm.  3,  for  suppressing  robberies,  burglaries,  burn- 
ing of  houses  or  haggards,  and  killing  or  maiming  cattle,  and  for  giving  satisfac- 
tion against  the  barony  to  those  who  should  suffer  from  such  occurrences.  The 
burning  or  malicious  injury  acts  hove  always  been  considered  as  forming  a  code 
of  laws  totally  distinct  from,  and  independent  of,  those  laws  and  enactments  which 
apply  to  vagrants.  On  the  whole,  therefore,  I  am  of  opinion,  that  as  a  woman  may 
be  a  vagabond,  and  may  fall  under  the  description  of  a  loose  and  idle  vagrant  of 
infamous  life  and  character,  she  is  within  the  operation  of  the  6  Ann,;  and  I  do  not 
think  that  her  being  a  prostitute  gives  her  any  privilege  or  exemption  which  any 
other  loose  and  idle  female  vagrant  does  not  possess.  E.  Tickell," 

As  to  the  acts  relating  to  cases  of  vagrancy,  which  are  not  the  subject  of  present- 
ment, see  M'Clusky't  cose,  ante  162, 163,  note. 


[*295]  IN  the  Matter  of  an   Application  for  a  PRESENT- 
MENT for  a  BRIDGE,  County  of  Westmeath. 

Where  an  application  for  a  public  work  had  been  brought  forward  at  presentment 
sessions  by  two  cess-payers,  and  being  rejected  there,  was  brought  before  the 
Judge  of  Assize,  under  the  6  &  7  W,  4,  c.  116,  s.  18:  Held,  first,  thiit  the  Judge 
was  not  at  liberty  to  direct  the  Grand  Jury  to  make  such  a  presentment,  without 
causing  a  petit  Jury  to  be  impannelud ;  secondly,  that  the  Judge  was  bound  to 
cause  the  petit  Jury  to  be  impannclcd  upon  a  proper  memorial  being  preferred, 
and  the  requisites  under  the  statute  performed;  and  thirdly,  that  the  Judge  had, 
after  a  verdict  for  the  applicant,  a  discretion  to  direct  the  Grand  Jury  to  consider 
the  case  or  not. 


'1    ■ 


At  the  close  of  the  business  of  the  Crown  court,  at  the 
Summer  Assizes  for  the  county  of  Westmeath,  in  1839, 


cbruory  8 

many  va- 
1  so  many 
1  were  au- 
r,  who  had 
and  cvtry 
)lling  pros- 
3B,  because 
the  6  Ann. 
c  of  labour, 
1  effect  has 
remained  a 
sidcring  the 
set  of  Acts 
Inries,  burn- 
ing  satisfac 
DHCCB.    The 
ming  a  code 
Ticnts  which 
woman  may 
le  vagrant  of 
and  I  do  not 
m  which  any 

TlCKFXL." 

cl  of  present- 


lESENT- 
ith. 

t  presentment 
ht  before  the 
hat  the  Judge 
nicnt,  without 
was  bound  to 
ing  preferred, 
he  Judge  had, 
iry  to  consider 

lirt,  at  the 
f,  in  1839, 


1840.]        WESTMEATII  PRESENTMENT,  BRIDGES.        205 

held  before  Bushe,  C.  J.,  counsel  on  behalf  of  Richard 
Tilson  and  Simon  Grijith  moved  upon  the  following 
memorial: — "To  the  Right  Hon.  and  Hon.  Judges  of 
"Assize  for,  &c.  The  humble  memorial  of  Richard 
"  Tilson  and  Simon  Griffith,  of,  &c.,  Sheweth,  that  your 
"  memorialists  being  persons  paying  grand  jury  cess  in 
"  and  for  the  county  of  Westmeath,  at  and  long  before 
"  the  time  of  making  the  applications  hereinafter  raen- 
"tioned  respectively,  your  memorialists  caused  such 
"  notices  and  copies  of  notices  to  be  duly  served  and 
"  posted  at  the  times  and  in  the  manner  by  law  in  that 
"  behalf  required,  for  the  purpose  of  having  the  first 
"  application  hereinafter  mentioned  laid  before  the  jus- 
"  tices  and  the  cess-payers  associated  with  them  in  the 
"  business  of  a  presentment  sessions  holden  in  CastlepoJr 
"  lard^  in  the  barony  of  Demifore,  and  county  aforesaid, 
"  on  the  9th  day  of  January,  in  the  year  of  our  Lord 
"  1839.  And  your  memorialists  further  show,  that  hav- 
"  ing,  at  the  time  aud  in  the  manner  by  law  required, 
"  lodged  with  the  secretary  of  the  Grand  Jury  for  the 
"  county  aforesaid,  a  map  of  the  proposed  bridge  hereiii- 
"  after  mentioned,  and  also  an  application  in  writing 
"  signed  with  the  proper  hands  of  your  memorialists  in 
"  the  words  and  figures  following :  '  County  of  West- 
"  ^meath;  We  Richard  Tilson  and  Simon  Griffith,  both  of, 
" '  &c.,  do  certify  that  we  have  lately  viewed  or  examined 
"  *  the  Island  Ford,  on  the  river  Inny,  between  the  to wn- 
"  'lands  *of  Scrubhyrvood  or  the  islands  in  the  [*296] 
"•barony  of  Demifore,  and  Clondee,  in  the  barony  of 


m 


rfl|  p^^^ 


I 


ri 


!| 


\ ' 

ill   ■ 
llll 

111 

1; 

Sri' 

896  JEBB*S   RESERVEu   CASES.  [Fcbroary  8 

"'Moygoish,  and  that  it  will  be  useful  to  build  a  bridge 
**  *at  said  place  iu  this  county,  on  a  proposed  new  line 
"  'of  road  from  Castlepollard  to  Edgervorthtoivn ;  and  wo 
"'propose  thrt  the  expense  of  the  aforesaid  work  shall 
"  'not  exceed  £813,  and  shall  be  defrayed  by  the  baro- 
"  'nies  of  Demifore  and  Moygoish,  and  that  presentment 
'"for  such  purpose  may  be  made  under  and  by  virtue 
«"(.f  the  56th  section  of  the  6  &  7  Wm.  IV.  c.  116, 
"  'being  an  act  to  consolidate  and  amend  the  lows  rela- 
"'ting  to  the  presentment  of  public  money  by  Grand 
"  'Juries  in  Ireland.^  And  which  application  was  in  all 
"  respects  accurate  and  true.  That  said  application  was 
"  laid  before  the  said  justices  and  cess-payers,  at  the  said 
"sessions,  who  took  the  same  into  consideration,  and 
"  having  examined  into  the  merits  of  the  said  application, 
"  and  of  its  conformity  with  the  provisions  of  the  statute 
"  in  such  case  made  and  provided,  the  said  justices  and 
"  cess-payers  decided  by  a  majority  of  voices  that  the 
"  said  application  ought  to  be  rejected.  And  your  me- 
"  morialists  further  show,  that  having  in  like  manner 
"  again  caused  such  notices  and  copies  of  notices  to  be 
"  served  and  posted  as  by  law  required,  for  having  a 
"  similar  application  in  all  respects  laid  before  the  justices 
"and  cess-payers  associated  with  them  in  the  business 
"  of  the  next  presentment  sessions,  holden  at  Castlepol- 
"  lard,  for  the  barouy  aforesaid,  in  the  county  aforesaid, 
"  and  having  again  lodged  with  the  Secretary  of  th6 
"  Grand  Jury  such  a  map  of  the  proposed  bridge  as 
"aforesaid,  and  an  application  precisely  similar  to  the 


f. 


) 


February  8 

bridge 
ew  lino 
and  wo 
•k  shall 
16  baro- 
jntment 
jr  virtue 
c.  116, 
ws  rela- 
jT  Grand 
•as  in  all 
lion  was 
;  the  said 
ion,  and 
plication, 
e  statute 
tices  and 
that  the 
your  me- 
I  manner 
i.ces  to  be 
having  a 
e  justices 
business 
Castkpolr 
aforesaid, 
ry  of  th6 
jridge  as 
lar  to  the 


1840]       WESTMEATH  PRESENTMENT,  BRIDGES. 


39G 


"former;  such  last-mentioned  application  was  regularly 
"laid  before  the  justices  and  cess-payers  associated  as 
"  aforesaid  at  such  next  presentment  sessions,  holden  at 
"  Castlejjollard  aforesaid,  on  the  22d  day  *  of  [*297] 
"  May  last,  who  then  took  the  same  into  their  consider- 
"  ation,  and  having  examined  into  the  merits  of  the  said 
"  last-mentioned  application,  and  of  its  eonformity  with 
"  the  statutes  in  such  case  made  and  provided,  the  said 
"justices  and  cess-payers  decided  by  a  majority  of  voices 
"  that  the  said  application  ought  to  be  rejected.  And 
"  your  memorialists  further  show  that  the  magistrates 
"  and  cess-payers  having  at  said  two  successive  present- 
"  ing  sessions  refused  to  approve  of  such  applications 
"  made  for  such  public  work  as  aforesaid,  which  memo- 
"  rialists  show  was  a  proper  work  to  be  executed ;  your 
"  memorialists,  pursuant  to  the  provisions  of  the  18th 
"section  of  the  6  &  7  Wni.  IV.  c.  116,  entitled,  &c., 
"  pray  that  your  lordships  the  Judges  of  assize  may  be 
"  pleased  to  direct  the  Grand  Jury  of  the  said  county 
"to  make  a  presentment  for  the  work  for  which  your 
"  memorialists  made  such  application  as  aforesaid,  and 
"  that  your  lordships  may  make  such  further  or  other 
"  orders,  and  take  such  further  or  other  proceedings  in 
"  the  premises,  according  to  the  statutes  in  such  case 
"  made  and  provided,  as  to  your  lordships  shall  seem 
"  fit.— Dated  this  4th  day  of  June,  1839. 

"Richard  Tilson, 
"Simon  Griffith." 


■M 


897 


JEBB'S    RESERVED   CASES. 


[February  8 


This  application  was  opposed  by  counsel,  who  ad- 
mitted that  the  memorialists  had  performed  all  the 
preliminary  requisites  prescribed  by  the  statute,  and 
that  the  memorial  correctly  stated  the  proceedings  at 
sessions  therein  mentioned.  No  evidence  was  given  at 
either  side.  The  following  questions  were  raised  upon 
the  argument: — first,  whether  the  Judge  was  at  liberty 
to  direct  the  Grand  Jury  to  make  such  a  presentment 
without  causing  a  petit  jury  to  be  impanneled?  Se- 
[*298]  condly — Whether  merely  upon  *  the  party  pre- 
ferring a  proper  memorial,  and  duly  performing  the 
requisites  under  the  statute,  the  Judge  is  bound  to  cause 
a  petit  jury  to  be  impanneled?  Thirdly — Whether,  if 
a  petit  jury  duly  impanneled  shall  find  a  verdict  for 
the  memorialist,  the  Judge  is  bound  to  desire  the  Grand 
Jury  to  consider  the  presentment,  or  whether  he  may, 
notwithstanding  such  finding,  refuse  to  do  so? 

The  learned  Chief  Justice,  with  the  consent  of  the 
parties,  respited  the  presentment  to  the  next  assizes, 
(without  prejudice  to  the  memorialists  from  the  delay,) 
in  order  to  submit  these  questions  to  the  consideration 
of  the  Judges. 


Eleven  Judges  ( Woulfe,  C.  B.,  being  absent,)  unani- 
mously agreed  upon  the  following  answers  to  the  ques- 
tions proposed : — first,  that  the  Judge  is  not  at  liberty 
to  direct  the  Grand  Jury  to  make  such  a  presentment 
as  that  required,  without  causing  a  petit  jury  to  be  im- 


[February  8 

who  ad- 
1  all  the 
Lute,  and 
edings  at 
;  given  at 
Lsed  upon 
at  liberty 
ssentment 
ed?  Se- 
larty  pre- 
ming  the 
d  to  cause 
'hether,  if 
erdict  for 
;he  Grand 
r  he  may, 


!nt  of  the 
ct  assizes, 
he  delay,) 
sideration 


it,)  unani- 
>  the  ques- 
at  liberty 
esentment 
T  to  be  im- 


1840.] 


REOINA   t.   KELLY. 


S98 


panneled.  Secondly,  that  the  Judge  is  bound  to  cause 
a  petit  jury  to  be  impanneled.  Thirdly,  that  the  Judge 
has,  after  a  verdict  for  the  applicant,  a  discretion  to 
direct  the  Grand  Jury  to  consider  the  case,  or  not  so  to 
direct  them,  as  he  may  think  proper. 


THE  QUEEN  v.  BRIDGET  KELLY.         [209] 

An  indictment  against  a  woman  for  the  murder  of  lier  child,  not  slating  that  tho 
cliiJd  was  born  alive,  but  stating  that  it  was  exposed  by  tlie  prisoner,  and  in 
consequence  "  languished,  and  languishing  did  live  for  half  an  hour,  and  then 
died,"  and  "  that  so  tlie  prisoner  did  kill  and  murder  the  child  in  manner  afore- 
said," is  good.  Semhle,  that  an  indictment  for  the  murder  of  a  "certain  male 
child,"  without  Airther  description,  is  insufficient. 

The  prisoner  was  convicted  before  Greene,  Serjeant,  at 
the  Spring  Assizes  for  Roscommon,  in  1840,  upon  the 
following  indictment :— First  count.  "  County  Roscom- 
mon to  wit:  The  jurors  for  our  sovereign  lady  the 
Queen  upon  their  oath  do  say  and  present  that  Bridget 
Kelly,  late  of,  &c.,  heretofore,  to  wit,  on  the  11th  day 
"  of  November,  3  Vict.,  at,  &c.,  was  delivered  of  a  cer- 
"  tain  male  child — and  the  jurors  aforesaid,  upon  their 
"  oath  aforesaid,  do  further  say  and  present,  that  the 
"  said  Bridget  Kelly,  afterwards,  to  wit,  on  the  said  11th 
"  day  of  November,  in  the  said  third  year  of  the  reign 
"  of  our  said  lady  the  Queen,  had  in  her  care,  custody. 


<( 


(< 


r 


■  W  ' 


999 


JEBD'S   RESERVED  CASES. 


[Juno  18 


•and  control,  the  said  male  child,  he,  the  said  male 
'  child,  then  and  there  being  of  tender  age,  to  wit,  the 

*  age  of  one  day,  and  by  reason  of  such  tender  age, 
'  being  utterly  incapable  of  making  known  his  natural 

*  wants,  or  of  providing  for,  or  procuring  his  natural 
'attention,  support,  and  maintenance;  and  tlie  jurors, 

*  &c.,  do  further  say  and  present,  that  the  said  Bridget 

*  AW/y,  well  knowing  the  premises,  and  not  having  the 
'fear  of  God  before  her  eyes,  but  being  moved  and 
« seduced  by  the  instigation  of  the  devil,  and  of  her 

*  malice  aforethought  contriving  and  intending  to  kill 
« and  murder  the  said  male  child  of  such  tender  nge  as 

aforesaid,  to  wit,  on  the  said  11th  day  of  November, 
in  the  said  third  year,  &c.,  with  force  and  arms,  at, 
&c.,  in  and  upon  the  said  male  child  feloniously,  wil- 
fully, and  of  malice  aforethought,  did  make  an  assault, 
and  did  then  and  there  of  her  malice  aforethought, 
contriving  and  intending  to  kill  and  murder  the  said 

*  [*300]  male  child,  place,  put,  leave,  desert,  and  *  aban- 
'  don  the  said  male  child  in  a  certain  stone  wall,  situate 
'  at  Morgamtotvn  aforesaid,  in  the  County  of  Roscommon 
'aforesaid,  in  a  state  wholly  destitute  and  unprotected; 
'  the  said  male  child  then  and  there  being  by  reasoii  of 

his  tender  age  utterly  incapable  of  making  known  his 
natural  wants,  or  of  providing  and  procuring  for  him 
necessary  attention,  support,  and  maintenance;  and 
the  jurors,  &c.,  do  further  say  and  present  that  by 
reason  of  such  placing,  putting,  leaving,  deserting, 
and  abandoning  the  said  male  child  in  the  said  stone 


[Juno  18 

(1  malo 
wit,  the 
ler  age, 
natural 
natural 
)  jurors, 
Bridget 
ving  the 
ved  and 
1  of  her 
g  to  kill 
er  ?ge  as 
Dvember, 
arms,  at, 
isly,  wil- 
1  assault, 
jthought, 
the  said 
d*aban- 
1,  situate 
iscommon 
irot,ected ; 
reasoii  '^f 
nown  his 
g  for  him 
,nce;  and 
t  that  by 
deserting, 
said  stone 


1^10.) 


REOINA   e.    KEM.Y. 


300 


"  wall,  at  Morganstown  aforesaid,  in  the  County  nfore- 
"said,  ho  the  said  mulo  cliild,  for  want  of  needful  food 
"and  sustenance,  and  of  due  and  proper  care  and  atten- 
**  tion,  and  by  and  through  the  inclemency  of  the  weather, 
*•  there  and  then  instantly  languished,  and  languishing 
"did  live  for  and  during  the  time  and  space  of  half  an 
"  hour,  and  then  and  there  the  said  male  child  in  man- 
"  ner  and  by  means  aforesaid,  perished  and  was  deprived 
"of  life;  and  so  the  jurors,  &c.,  do  say  and  present  that 
"  the  said  Bridget  Kelly  the  said  male  child,  with  force 
"and  arms  aforesaid,  in  manner  and  form  aforesaid, 
"  feloniously,  wilfully,  and  of  her  malice  aforethought, 
"did  kill  and  murder,"  against  the  peace  and  statute. 
Second  count: — "And  the  jurors,  &c.,  do  further  say 
"  and  present,  that  the  said  Bridget  Kelly,  on  &c.,  with 
"  force  and  arms,  at  &c.,  not  having  the  fear  of  God 
"  before  her  eyes,  &c.,  in  and  upon  a  certain  male  child, 
"  feloniously,  wilfully,  and  of  her  malice  aforethought, 
"  did  make  an  assault,  and  that  the  said  Bridget  Kelly ^ 
"  with  a  certain  stone  of  ro  value,  which  she  the  said 
"  Bridget  Kelly  in  her  right  hand  then  and  there  had 
"  and  held,  the  said  male  child  in  and  upon  the  head  of 
"  him  the  said  male  child  then  and  there  feloniously, 
"  wilfully,  and  of  her  malice  aforethought,  did  strike 
"and  wound,  thereby  *  giving  to  the  said  male  [*301] 
"  child  then  and  there  with  the  stone  aforesaid,  in  and 
"  upon  the  nead  aforesaid  of  him  the  said  male  child, 
"  one  mortal  wound  of  the  length  of  two  inches  and  of 
"  the  depth  of  two  inches,  of  which  said  mortal  wound 
47 


I 


1    !'!! 
ih, 


iill 


m 


i.  ,: 


301 


JEBB'S   RfiSERVED   CASES. 


[June  18 


"  the  said  male  child  then  and  there  instantly  languished, 
**  awd  languishing  did  live  for  the  time  and  space  of  half 
"an  hour,  and  then  of  the  said  mortal  wound,  at,  &c., 
"died;  and  so  the  jurors  aforesaid,  upon  their  oath 
"  aforesaid ,  do  say,  that  the  said  Bridget  Kelly  him  the 
"  male  child  in  manner  and  form  and  by  means  aforesaid, 
"  feloniously,  wilfully,  and  of  her  malice  aforethought 
"  did  kill  and  murder,"  against  the  peace  and  statute. 

Casserly  and  ilf '  Causland,  for  the  prisoner,  moved  that 
the  judgment  should  be  arrested,  on  the  ground  of  the 
insufficiency  of  the  indictment;  the  first  count  being 
defective  in  not  averring  that  the  child  was  born  alive, 
and  the  second  in  not  properly  describing  the  male 
child  therein  mentioned,  either  by  name,  or  age,  or 
otherwise,  or  saying  that  it  was  to  the  jurors  unknown ; 
and  in  being  too  general.  It  was  contended  on  behalf 
of  the  crown,  that  the  conclusion  of  the  first  count  sup- 
plied the  want  of  an  averment  that  the  child  was  born 
alive  •  and  that  no  more  particular  description  was  ne- 
cessary in  the  second  count.  In  support  of  the  first 
objection  were  cited  the  precedents  in  Archhold's  Crim. 
Plead.,  where  the  form  of  indictment  avers  that  the 
child  was  born  alive;  and  in  support  of  the  second, 
Biss's  case,  8  Car.  &  Payne  773,  (34  E.  C.  L.  630), 
and  Evans's  case,  ibid.  765  (id.  625)  (a).     The  opinion 


(a)  Sec  also  the  cases  collected  in  Arch.  Plead.  &.  Ev.,  30,  (8tli  ed.)  which  appear 
to  leave  no  doubt  upon  tlic  subject. 


I 


i 


[June  18 

uished, 
of  half 
it,  &c., 
ir  oath 
litn  the 
oresaid, 
thought 
statute. 

ved  that 
d  of  the 
it  being 
n  alive, 
tie  male 
age,  or 
iknowu ; 
n  behalf 
lunt  sup- 
vas  born 
was  ne- 
the  first 
Vs  Crim. 
that  the 
)  second, 
L.  630), 
e  opinion 

wliich  appear 


1840.] 


REGINA  V.  HARTNETT. 


301 


I 


i 


of  the  learned  Judge  was  that  the  second  count  was  bad, 
but  that  the  firs*  was  good ;  and  he  reserved  *  for  [*30ii] 
the  consideration  of  the  Judges  the  question  whether . 
either  of  the  counts  could  be  supported. 

Eleven  Judges  ( Woulfe,  C.  B.,  being  absent)  were 
unanimous  in  upholding  the  conviction,  on  the  ground 
that  the  first  count  was  good.  Richards,  B.,  held  the 
second  count  to  be  bad,  but  the  other  Judges  gave  no 
opinion  upon  that  point. 


THE  QUEEN  «.  JAMES  HARTNETT  and  THOMAS 

CASEY. 

Where  the  Judge  omitted,  in  pronouncinor  sentence  on  a  conviction  for  murder,  to 
order  that  the  bodies  of  the  prisoners  should  be  buried  witliin  tlie  prceincic  of 
the  gaol,  as  directed  by  the  4  &  5  W.  4,  c.  2fi,  s.  2;  but  on  a  subsequent  day,  on 
ruling  the  book  at  the  close  of  the  sanfe  assizes,  in  the  absence  of  the  prisoners, 
ordered  tlie  clause  in  question  to  be  inserted:  Held,  that  the  sentence  was  illegal, 
notwithstanding  the  6  &  7  W.  4,  c.  30,  s,  2. 

The  following  report  was  submitted  '"  Richard  Moore, 
Q.  C,  to  Bushe,  C.  J.,  to  be  laid  uelbre  the  Twelve 
Judges  for  their  consideration : — 

"  At  the  last  assizes  held  for  the  city  of  Cork,"  (Spring 
Assizes,  1840) '' James  Hartnett  and  Thomas  Casei/ were 
"  convicted  before  me  of  murder.    After  conviction  they 


"Bf: 


4'' 


JEDB'S  RESERVED  CASES. 


[May  18 


\  I 


II 


ill 


!    ii 


"  were  asked,  in  the  usual  way,  whether  they  had  any 
"  thing  to  say,  why  sentence  of  death  should  not  be  pro- 
"  nounced  upon  them;  and  I  then  pronounced  sentence 
"  of  death,  but  did  not  at  that  time  direct  that  their 
"  bodies  should  be  buried  within  the  precincts  of  the 
"gaol.  When  ruling  the  book  in  a  day  or  two  after,  I 
"directed  in  open  Court  that  their  bodies  should  be 
"  buried  within  the  precincts  of  the  gaol.  The  prison- 
"  ers  were  not  in  Court  on  this  latter  occasion. 


"  It  has  been  suggested  by  Mr.  Cqppinger,  one  of  the 
counsel  for  the  prisoners,  that  the  above  proceeding  is 
[*;i03]  *  open  to  objection,  and  that  the  prisoners  are 
entitled  to  derive  some  benefit  from  the  objection.  I 
have  not  been  apprized  of  the  ground  of  the  objection, 
nor  whether  the  counsel  contends  that  there  is  error 
in  the  proceeding.  On  communicating  with  the  At- 
torney-General, he  has  suggested  that  I  ought  to  lay 
the  facts  before  your  lordship,  in  order  to  have  your 
opinion,  and  that  of  the  other  Judges:  and  for  that 
purpose  I  have  taken  the  liberty  of  making  the  above 
statement  to  your  lordship. 

"  I  have  the  honor  to  be, 
"  My  Lord, 

"  Your  obedient  servant, 
"  Richard  Moore." 


The  following  certificate,  signed  by  the  prisoners' 
counsel,  was  also  laid  before  the  Judges : — 


[May  18 

'  had  any 
ot  be  pro- 
.  sentence 
that  their 
cts  of  the 
ro  after,  I 
should  be 
tie  prison- 


one  of  the 
ceeding  is 
soners  are 
lection.     I 

objection, 
re  is  error 
ith  the  At- 
ight  to  lay 
have  your 
d  for  that 

the  above 


1840.] 


REGINA   V.  HARTNETT. 


servant, 
D  Moore." 

prisoners' 


N 


(( 


« 


(( 


"We  certify,  that  the  prisoners,  Hartnett  and  Casey, 
"  were  tried  before  Richard  Moore,  Esq.  one  of  her  Ma- 
"jesty's  Judges  of  Assize  for  the  Munster  Circuit,  at 
"  the  last  assizes  for  the  county  of  the  city  of  Cork, 
"  charged  with  the  wilful  murder  of  Patrick  Lawlor, 
"  and  that  hcch  of  said  prisoners,  Hartnett  and  Caseij, 
"  were  fou-.id  guilty  of  that  wilful  murder.  We  further 
"  certify,  that  the  learned  Judge,  in  passing  sentence  of 
death  upon  each  of  these  two  persons,  omitted  to  pro- 
nounce the  sentence  as  directed  and  prescribed  by  law, 
"  namely,  that  he  omitted,  in  pronouncing  said  sentence 
"upon  said  Hartnett  and  Caseij,  to  express  that  the 
bodies  of  the  said  prisoners  should  be  buried  within 
"  the  precincts  of  the  prison,  as  is  directed  and  pre- 
"  scribed  by  the  Act  of  Parliament  («),  in  that  case 
*  made  and  provided.  And  we  further  cer-  [*304] 
"  tify,  that  the  said  prisoners  were  not,  nor  was  either 
of  them,  again,  during  said  assizes,  called  up  before 
said  Judge,  nor  did  he  pronounce  upon  them,  in  their 
"  presence,  any  sentence  pursuant  to  law ;  and  we  certify, 
"  that  in  our  opinion  there  are  reasonable  grounds  to 
"argue,  that  the  above  judgment  should  be  reversed 
"  upon  error  brought. 

"  Christopher  Coppinger, 
"Wm.  Deane  Freeman." 


(«)  4  &  5  W.  4,  c.  2G,  B.  2.— See  also  the  6  &  7  W.  4,  c.  30,  b.  2,  and  the  1  Vict 
c.  77.  The  title,  and  tlic  3d  section,  of  the  latter  Act,  were  referred  to  by  tlie 
Attorney-Gcuerul,  after  the  argument,  as  possibly  bearing  ujwn  the  question. 


t( 


(( 


m^ 


\ 


304 


JEBB'S  RESERVED  CASES. 


[May  18 


!l 


i 

ill 


The  case  was  argued  by  the  Attorney-General  and 
other  counsel  for  the  Crown,  and  also  by  counsel  for  the 
prisoners,  before  ten  of  the  Judges  ( Woidfe,  C.  B.,  and 
Pennefather,  B.,  being  absent) ;  and  the  majority  of  them, 
consisting  of  six  Judges  (Doiierty,  C.  J.,  Torrens.  J., 
Foster,  B.,  Crampton,  J.,  Peprin,  J.,  and  Ball,  J.,) 
were  of  opinion,  that  the  sentence  was  illegal.  All 
those  Judges,  except  Perrin,  J.,  rested  their  opinion 
upon  the  ground,  that  the  original  sentence,  of  death 
only,  was  illegal,  because  it  did  not  contain  an  order 
that  the  bodies  should  be  buried  within  the  precincts  of 
the  gaol;  that  the  4  &  5  W.  IV.  c.  26,  s.  2,  was  not 
merely  directory,  but  made  the  order  a  part  of  the  sen- 
tence; and  that  the  amendment  would  have  made  it 
right,  if  made  in  the  presence  of  the  prisoners,  but  that 
as  it  was  made  in  their  absence,  they  were  not  affected 
by  it.  Perrin,  J.,  held,  that  the  sentence  of  death  alone 
was,  by  force  of  the  6  &  7  W.  4,  c.  30,  s.  2,  the  only 
legal  sentence  which  could  have  been  passed  since  that 
statute;  but  that  what  was  added  in  the  Crown  Book 
had  rendered  it  illegal,  because  if  a  record  had  been 
made  of  the  conviction  from  the  Crown  Book,  it  would 
not  appear  from  it  to  have  been  entered  in  the  absence 
[*305]  of  the  prisoners.  The  minority  *  (consisting  of 
BusHE,  C.  J.,  Johnson,  J.,  Burton,  J.,  and  Richards, 
B.,)  held  the  sentence  to  be  legal.  Of  these,  Bushe,  C. 
J.,  was  of  opinion,  that  the  original  sentence  would  have 
been  illegal,  if  the  case  had  occurred  before  the  6  &  7 
W.  IV.  c.  30,  s.  2,  the  order  to  bury  being  essential  to 


[May  18 

leral  and 
lel  for  the 
3.  B.,  and 
y  of  them, 

RRENS.  J., 

Ball,  J.,) 
egal.  All 
ir  opinion 

1,  of  death 
a  an  order 
irecincts  of 

2,  was  not 
of  the  sen- 
ve  made  it 
rs,  but  that 
not  affected 
3eath  alone 

2,  the  only 
d  since  that 
rown  Book 
i  had  been 
ok,  it  would 
the  absence 
;onsisting  of 

I   RlCHA-RDS, 
B,  BUSHE,  C. 

would  have 
re  the  6  &  7 
essential  to 


1840.] 


REGINA   o.   HARTNETT. 


305 


the  legality  of  the  sentence;  but  that  statute  having  put 
sentences  for  murder  upon  the  same  footing  as  sentences 
for  any  other  capital  offence,  the  sentence  pronounced 
in  the  presence  of  the  prisoners  was,  as  such,  a  legal 
sentence ;  and  that  what  was  done  in  the  absence  of  the 
prisoners  could  not  have  the  effect  of  making  that  ille- 
gal, which  was  legal  before.  The  other  three  members 
of  the  minority  were  of  opinion,  that  the  original  sentence 
was  legal,  and  would  have  been  so  before  the  6  &  7  W. 
IV.  c.  30,  the  clause  respecting  the  order  to  bury  the 
body  being  only  directory,  and  not  making  such  order 
indispensable  to  the  legality  of  the  sentence ;  and  that 
the  amendment  in  the  absence  of  the  prisoners  did  not 
render  it  illegal. 

The  decision  being  favourable  to  the  prisoners,  they 
were  accordingly  pardoned  and  discharged;  but  with 
the  view  of  establishing  uniformity  and  certainty  with 
respect  to  statutable  provisions  which  are  common  to 
both  countries,  Bushe,  C.  J.,  wrote  to  the  Lord  Chief 
Justice  of  England,  to  inquire  whether,  in  England, 
since  the  late  alterations  in  the  criminal  law,  any  ques- 
tion had  been  raised,  or  any  decision  made,  as  to  what 
was  the  legal  sentence  to  be  passed  upon  persons  found 
guilty  of  murder.  His  Lordship,  at  the  same  time, 
transmitted  a  statement  of  the  above  case,  and  of  the 
decision  of  the  Judges  upon  it.  The  answer  of  the 
Lord  Chief  Justice  of  England  was  as  follows : — 


I 


ilii 


,1     I 

••I   ^ 


"i  f    i 


•306  JEBB'S   RESERVED   CASES.  [Juno  18 

^"Westminstcr-hall,  June  8,  1840. 
"  My  dear  Lord, 

"Though  no  case  has  come  regularly  before  the 
"  Judges  of  England  on  the  point  stated  by  your  Lord- 
"  ship,  I  have  no  doubt  that  they  would  come  to  the 
"  same  decision  as  that  which  has  taken  place  at  Dublin. 
"  I  myself,  two  years  ago,  passed  a  sentence  with  the 
"  same  defect,  and  found  so  strong  a  doubt  of  its  legality 
"  prevailing  among  the  Judges,  that  it  seemed  prudent 
"  to  recommend  a  commutation  of  the  sentence.  Cer- 
"tainly  in  this  country  no  sentence  for  murder  will 
"  omit  hereafter  to  include  a  direction  for  burying  the 
"  convict's  body. 

"  Your  Lordship's 

"  Most  faithful  servant, 

"Denaian." 
^'^To  the  Lord  Chief  Justice 
''of  Ireland:' 


I  i:iif 


'i  W 


[*307]   IN  the  Matter  of  a   Presentment  for  the   Repairs   of 
ROADS  in  the  County  of  TIPPERARY. 

Held,  tJiat  in  consequence  of  the  6  &.  7  W,  4,  c.  116,  the  Grand  Jury  liad  no  power 
to  make  a  presentment  for  the  expenses  of  repairing  a  turnpike  road  in  Tipperary, 
under  the  3  &  4  W.  4,  c.  1 12,  r.  92,  where  tlic  application  fur  that  purpose  had 
been  disallowed  at  the  sessions. 

Henry  Pedder  and  Thomas  Hughes,  two  of  the  Trus- 
tees of  the  Clonmel  turnpike  district,  applied,  on  behalf 


[Juno  18 

1840. 

ifore  the 
lur  Lord- 
le  to  the 
it  Dublin. 
with  the 
Ls  legality 
3  prudent 
ice.     Cer- 
irder  will 
irying  the 


rvant, 

;nman.' 


1840.] 


TIPPERARY   PRESENTMENT,  ROADS. 


307 


Repairs  of 


■y  had  no  power 
ad  in  Tipperary, 
hat  purpose  had 


f  the  Trus- 
on  behalf 


of  that  district,  under  the  3  &  4  W.  IV.  c.  112,  (local 
and  public)  to  the  Road  Sessions  held  at  Clo?imel  for  the 
County  of  Tipperary  at  large  pvevious  to  the  Spring 
Assizes,  1840,  for  a  presentment  for  £300,  for  repair- 
ing part  of  the  road  from  Kilkenny  to  Clonmel,  to  be 
levied  off  the  south  riding  of  the  county;  but  the  appli- 
cation was  disallowed  at  sessions.  A  copy  of  this  appli- 
cation was,  however,  afterwards  laid  before  the  Grand 
Jury  for  the  South  Riding  of  the  county  at  Clonmel 
Spring  Assizes,  1840,  and  a  presentment  was  thereupon 
passed  for  the  required  sum  by  the  Grand  Jury.  The 
application  and  presentment  were  as  follows : 


"We,  Henry  Pedder  and  Thomas  Hughes,  botli  of, 
&c.,  do  certify,  that  we  have  lately  viewed  and  caused 
to  be  measured  11,735  perches  of  the  turnpike  road 
leading  through  Clonmel,  from  the  city  of  Kilkenny  to 
the  city  of  Cork,  &c.,  and  that  the  said  11,735  perches 
of  land  are  in  the  townlands  following,  viz.  &.C.,  all 
in  this  county,  and  that  the  same  are  in  need  of  re- 
pair; and  we  propose  that  the  expense  of  the  aforesaid 
repairs  shall  not  exceed  £  300,  at  the  rate  of  Gd.  per 
perch,  and  shall  be  defrayed  by  the  South  Riding  of 
the  county  at  large,  and  that  a  presentment  for  such 
purpose  shall  be  made  under  and  by  virtue  of  the 
12th  section  of  the  6  &  7  W.  IV.  c.  116,  being  an 
Act  to  consolidate  the  laws  relating  to,  &c.,  and  under 
*and  by  virtue  of  the  92d  section  of  the  3  &  4  [*308] 
W.  IV.  c.  112,  being  an  Act  for  more  effectually  re- 
48 


If! 


li 


w. 


n 

'!,''. 


'>  I 


;;, 


808 


J£BB'8   RESERVED   CASES. 


[Juno  18 


"  pairing  several  roads  in  the  counties  of  Carlow,  Kil- 
"ke?iny,  and  Tipperary,  and  also  the  road  from  the 
"  town  of  Clonmel,  through  the  county  of  Waterfoi'd,  to 
**  the  cross-roads  of  Knocklofty,  in  the  said  county  of 
"  Tipperary. 

"Henry  Pedder. 

"Thomas  Hughes." 


'i 


"We  present  the  sum  of  £300,  to  be  levied  and  raised 
"  on  the  South  Riding  at  large,  and  by  the  Treasurer 
"  paid  over  to  Henry  Pedder  and  Thomas  Hughes,  for 
"  repairing  11,735  perches  of  the  turnpike  road  leading 
"  through  Clonmel,  from  the  city  of  Kilkenny  to  the  city 
"  of  Cork,  between  Nine-mile-house  and  Glandujf-hridge. 
"—3  &  4  W.  IV.  c.  112,  s.  92.  Ordered  for  self  and 
"  fellow-jurors. 

"J.  Bagwell,  Foreman." 


\:    W    !ii 


The  92d  section  of  3  &  4  W.  IV.  c.  112,  was  as  fol- 
lows :  "And  be  it  further  enacted,  that  nothing  in  this 
"  Act  contained  shall  extend,  or  be  construed  to  extend, 
"  to  take  away  from  Grand  Juries  the  power  or  the  obli- 
"  gation  to  repair  any  part  of  the  roads  to  which  this 
"  Act  is  specifically  applicable,  but  that  it  may  be  law- 
"ful  for  the  Grand  Juries  of  the  counties  of  Carlow, 
'^Kilkenny,  Tipperary  and  Waterford,  and  they  are 
"  hereby  required  to  present,  from  time  to  time,  such 
"  sumSf  to  be  levied  on  the  counties  at  large,  as  shall 
"appear  to  be  necessary,  in  consequence  of  the  defi- 


[Juno  18 

'low,  Kilr 
from  the 
lerfm'd,  to 
county  of 

)DER. 
JGHES." 

and  raised 
Treasurer 
lughes,  for 
ad  leading 
to  the  city 
iujf-hridge. 
[)r  self  and 

reman." 

was  as  foi- 
ling in  this 
to  extend, 
or  the  obli- 
which  this 
lay  be  law- 
of  CarhrVt 
i  they  are 
time,  such 
re,  as  shall 
of  the  defi- 


1840.1 


TIPPERARY  PRESENTMENT,  ROADS. 


308 


ciency  of  the  tolls,  for  repairinfr  any  part  of  the  said 
roads,  or  for  making  or  repairing  the  bridges,  quay 
walls,  pipes,  and  gutters,  thereon,  or  the  footpath 
thereto,  and  also  for  repairing  such  parts  *  of  [*3()9] 
the  old  road,  as  now  are  or  shall  be  used  as  a  public 
road,  although  a  turnpike  or  turnpikes  may  be  erected 
thereon,  provided  it  shall  appear  that  the  receipts  of 
such  turnpikes  are  not  sufficient  for  defraying  the 
expenses  of  such  repairs,  such  presentment  and  pre- 
sentments to  be  made  on  the  like  applications,  and 
subject  to  the  like  inquiries  and  forms  for  accounting 
as  are  ordained  and  required  by  the  Acts  (a)  now  in 
force  for  the  making  and  repairing  of  roads." 


It  was  insisted  before  Richards,  B.,  the  Judge  of 
Assize,  that  the  presentment  in  question  was  to  be  con- 
sidered as  imperative,  under  the  3  &  4  W.  IV.  c.  112, 
s.  92,  or  at  all  events  that  it  was  such  a  one  as  the 
learned  Judge  might  legally  fiat.  His  lordship,  how- 
ever, entertained  considerable  doubt  as  to  the  power  of 
the  Grand  Jury  to  make  the  presentment,  and  therefore 
respited  the  fiating  of  it,  in  order  to  obtain  the  opinion 
of  the  Judges.  The  three  objections  which  suggested 
themselves  were  as  follows:  First,  that  a  particular 
mode  of  proceeding,  and  a  distinct  and  ample  remedy, 
were  given  by  ss.  61  &  65  of  the  6  &  7  W.  IV.  c.  116: 
Secondly,  that  that  Act  was  a  repeal  of  s.  92  of  the 

(o)  The  principal  Act  then  in  force  on  tho  subject,  wan  the  .59  G,  .3,  c.  84 


3i 

■  'Ij 


^ 


i 


'I    I 

il  ^ 


m 


.;     ,    * 


i 


ifl 


!■';  i 


JEDD'S   RESERVED   CASES. 


[Juno  19 


3  &  4  W.  IV.  c.  112:  and  thirdly,  that  even  supposing 
it  not  to  repeal  that  section,  yet  the  Grand  Jury  had  no 
power  to  pass  the  presentment,  if  thrown  out  or  di.sap- 
proved  of  at  the  presenting  sessions. 

Eleven  Judges  ( Woulfe,  C.  B.,  being  absent)  unani- 
mously held,  that  tlie  presentment  should  not  be  fiated. 


[*310]  IN  the  Matter  of  Presontmonts  for  the  NORTH  RIDING 
of  the  County  TIPl'ERARY. 

Where,  after  the  division  of  a  county  into  two  ridings  by  proclamation  under  the 
G  4S^  7  W.  4,  c.  IKi,  R,  17G,  pi;t)sciitiucntH  for  thu  north  lidin^',  fuundcd  on  con- 
tnicfs  entered  into  ufter  tiio  division,  were  by  niiHtnltc  piisNed  at  tiie  assizes  for 
tlie  soulii  lidiny^:  Hdd,  timt  tlie  Judj^c  of  assize  liad  no  power  to  r:!clify  tho 
mistake  by  ordering  tlie  prescntmenta  to  be  levied  on  the  north  riding. 

By  a  proclamation  of  the  Lord  Lieutenant  and  Council 
of  Ireland,  dated  the  8th  of  November,  1838,  and  made 
in  pursuance  of  the  6  &  7  W.  IV.  c.  116,  s.  176,  it  was 
amonffst  other  thinjjs  directed,  that  thenceforth  the 
county  of  Tipperary  should  be  divided  into  two  ridings, 
one  to  be  called  the  South  Riding,  and  the  other  the 
North  Riding,  and  that  the  town  of  Clonmel  should  be 
the  assize  town  for  the  South  Riding,  and  the  town  of 
Nenagh  the  assize  town  for  the  North;  and  it  was  also 
ordered,   that  no  presentment  should  thenceforth  be 


' 


[Juno  19 

nipposing 
ry  had  no 
,  or  disap- 


nt)  unani- 
t  be  fiated. 


m  RIDING 


lalion  under  the 
fouiiclfd  on  con. 
t  the  nssi/fs  for 
;r  to  nclity  tho 
riding. 

,nd  Council 
,  and  made 
176,  it  was 
ceforth  the 
;\vo  ridings, 
e  other  the 
;/  should  be 
the  town  of 
it  was  also 
aceforth  be 


1840.] 


TIPPERARY   PRESENTMENT. 


.110 


made  by  the  Grand  Jury  at  Clonmel  or  Nenagh,  of  any 
sum  of  money  to  be  levied  olf  tho  said  county  of  Tip- 
perary  at  largo,  nor  should  any  presentment  be  made 
by  the  Grand  Jury  of  Clonmel  of  any  sum  of  money  to 
be  levied  off"  any  barony,  or  half  barony,  or  denomina- 
tion in  the  North  Hiding,  except  in  the  cases  therein 
after  provided;  or  by  the  Grand  Jury  at  Nenagh  of  any 
sum  to  be  levied  off  any  barony,  or  half  barony,  or  de- 
nomination in  the  South  Riding;  but  that  each  of  the 
said  Grand  Juries  respectively  should  have  power  to 
present  any  sum,  to  be  levied  off*  the  whole  of  the  riding, 
in  and  for  which  such  Grand  Jury  should  act,  aF  if  each 
such  riding  were  in  itself  a  county  at  large.  It  was 
further  ordered,  that  this  proclamation  should  commence 
and  take  effect  from  the  10th  day  of  December  then 
next  (1838);  provided  always,  that  all  Presentment  Ses- 
sions ordered,  and  all  presentments  and  contracts  made, 
or  money  to  be  levied,  accounted  for,  or  paid  in  the  said 
county,  under,  or  in  consequence  of  any  Act  or  Acts  in 
force,  before  the  *said  10th  day  of  December,  [*311] 
should  be  proceeded  on,  levied,  and  accounted  for,  and 
paid,  in  the  manner  provided  for  by  those  Acts,  and 
subject  to  the  rules,  regulations,  and  provisions,  con- 
tained in  them,  as  if  such  proclamation  and  division  of 
the  county  had  not  been  made. 

Previously  to  the  division  of  the  county,  the  Secretary 
of  the  Grand  Jury  was  in  the  habit  of  annually  bringing 
on  the  contracts,  which  had  before  been  entered  into  for 


m 

m 


HfpHV 


!i 


311 


JERB'R  RESERVED  CASES. 


[Juno  19 


periods  of  years,  and  wliich  were  always  passed  by  the 
Grand  Jury,  and  fiutcd  by  tlic  Judge  as  of  course;  and 
at  the  two  assizes  which  intervened  between  the  division 
of  the  county  and  tlie  Spring  Assizes  of  1840,  the  Grand 
Jury  at  Chtimel,  in  pursuance  of  the  provisions  of  the 
proclamation,  passed  the  annual  presentments  for  such 
contracts  as  usual,  as  well  those  which  related  to  roads 
in  the  North,  as  in  the  South  Riding.  But  at  the  Spring 
Assizes  of  Clonmel  in  1840,  (being  the  first  assizes  at 
which  it  became  necessary  to  bring  on  such  contracts 
as  had  been  entered  into  subsequent  to  the  division  of 
the  county)  not  only  those  which  had  been  entered  into 
previous  to  the  division,  but  also  those  contracts  which 
had  been  made  at  the  Spring  Assizes  in  1839,  as  well 
for  the  North,  as  for  the  South  Riding,  were  all  brought 
on,  and  passed  by  the  Grand  Jury  for  the  South  Riding 
at  Clonmel.  This  circumstance  did  not  come  under  the 
notice  of  Richards,  B.  (the  Judge  of  Assize),  or  of  the 
Clerk  of  the  Crown,  until  after  the  assizes  of  Nenagh, 
when  the  latter  came  in  the  usual  way  to  make  copies 
of  the  presentment  books  for  the  Treasurer;  and  as  it 
appeared  to  him  that  the  Grand  Jury  of  one  riding  had 
no  control  whatsoever  over  any  presentment  originally 
passed  by  the  Grand  Jury  of  the  other,  he  thought  it 
[*312]  his  *  duty  to  bring  the  matter  before  the  Judge, 
as  he  did  not  conceive  that  under  the  provisions  of  the 
proclamation  he  would  be  justified  in  having  those  pre- 
sentments put  on  the  levy  with  the  others.  The  pre- 
sentments in  question  were  all  founded  on  contracts  for 


[June  10 

3(1  by  the 
irse;  and 
e  division 
he  Grand 
)ns  of  the 
ft  for  such 
\  to  roads 
lie  Spring 
assizes  at 

contracts 
livision  of 
tered  into 
cts  which 
19,  as  well 
11  brought 
th  Riding 
under  the 
,  or  of  the 
f  Nenagh, 
ake  copies 
;  and  as  it 
riding  had 
originally 
thought  it 
the  Judge, 
ons  of  the 
those  pre- 

The  pre- 
intracts  for 


1840.] 


TIPPERARY   PRESENTMENT. 


319 


repairing  roads  for  different  terms  of  years,  and  if  laid 
before  the  Grand  Jury  at  Nenagh,  they  would  have  been 
passed  without  doubt,  as  of  course.  Tlie  mistake,  how- 
ever, of  the  Secretary  of  the  Grand  Jury  was  in  bringing 
them  before  the  Grand  Jury  at  Clumnel,  as  if  they  had 
been  contracts  entered  into  before  the  division  of  the 
county. 

Richards,  B.,  accordingly  reserved  for  the  opinion  of 
the  Judges  the  question:  Could  the  Judge  authorize 
the  Clerk  of  the  Crown  to  put  these  presentments,  so 
founded  on  contracts  entered  into  subsequent  to  the 
division  of  the  county,  on  the  levy  for  the  North 
Riding;  they  having  already  been  fiated  by  the  Judge, 
under  the  circumstances  above  stated,  at  Clonmel,  the 
assize  town  for  the  South  Riding? 

Ten  Judges  (Dohertij,  C.  J.  C.  Pleas,  and  Woulfe, 
C.  B.,  being  absent)  unanimously  decided,  that  the 
Judge  of  Assize  had  no  power  to  set  the  mistake  right. 


I 


I 


I 


I 


i'!! 


j'!)}. 


»313 


JEBB'S    RESERVED    CASES, 


[June  18 


*Thc  ATTORNEY-GENERAL,  Appellant;  WILSON, 

Respondent. 

The  Attoincy-Gcncral  is  not  liuWc  *o  deposit  or  give  security  for  costs  under  the  6 
&  7  VV  4,  c.  7 "),  s.  31,  upon  appenlinjr  from  a  dismiss  of  u  civil  hill  lir()iiy:lit  by 
him  iifraiiist  a  Hridjje  Contriictor  on  his  recojjiii/ance  under  the  6  &-  7  VV.  4,  c. 
IIG,  s.  IfiS.  On  the  hearing  of  such  a  civil  hill  it  lies  on  the  defendant  to  prove 
that  the  Bridfic  was  built,  and  not  on  the  Attorney-Oeneral  to  prove  that  it  was 
not.  Semhle,  that  the  amount  of  the  sum  to  be  dcciced  in  such  a  case  is  to  be 
measured  by  the  amount  of  actual  damage  sustained. 

At  the  sessions  preceding  the  Spring  Assizes  for  the 
county  of  Fermanagh,  in  1840,  the  Attorney-General 
had  proceeded  by  civil  bills  against  several  contractors 
for  public  works  and  their  sureties,  suing  them  on  their 
recognizances  under  the  6  &  7  W.  IV.  c.  116,  s.  168  (a). 
The  assistant  barrister  in  all  these  cases  had  dismissed 
without  prejudice  and  without  costs.  The  Attorney- 
General  appealed,  and  on  the  hearing  of  these  appeals 
before  Foster,  B.,  at  the  ensuing  Assizes,  some  questions 
arose  which  he  reserved  for  the  opinion  of  the  Judges. 
Amongst  these  were  the  following : 


:f !  I 


In  the  case  of  the  Attorney-General  v.  Wilson  (one  of 
the  civil  bill  cases  in  question)  it  was  contended,  that 
the  Attorney-General  was  not  at  liberty  to  appeal,  not 
having  entered  into  any  recognizance,  nor  deposited 
with  the  Clerk  of  the  Peace  double  I  he  costs  of  the  dis- 

(a)  Vide  soiled.  Y  of  that  Act,  for  the  form  of  the  recognizance. 


[June  18 


HLSON, 


osts  under  the  G 
liill  liriiiifflit  by 
!  6  &,  7  VV.  4,  c. 
li'iidant.  lo  prove 
rove  tliiit  it  was 
li  a  case  is  to  be 


zes  for  the 
ey-General 
contractors 
;m  on  their 
,  s.  168(a). 
1  dismissed 
1  Attorney- 
ese  appeals 
le  questions 
he  Judges. 


Ison  (one  of 
ended,  that 
appeal,  not 
f  deposited 
5  of  the  dis- 


1840.] 


ATTORNEY-GENERAL  ».  WILSON. 


S13 


miss,  under  the  6  &  7  W.  IV.  c.  75,  s.  31,  and  6  &  7 
W.  IV.  c.  116,  s.  168.  The  first  question  therefore 
was,  whether  the  Attorney-General,  so  suing,  is  bound 
to  the  observance  of  those  preliminaries? 

In  the  same  case,  the  work  contracted  for  beino-  the 
building  of  a  bridge,  the  second  question  was,  whether 
the  onus  of  proving  that  the  bridge  had  not  been  built 
was  cast  on  the  Attorney-General,  or  the  mius  of  proving 
that  it  had  been  built,  was  cast  upon  the  person  sued? 

*  The  bridge,  in  point  of  fact,  not  having  been  [*314] 
built,  the  third  question  was,  for  what  sum  the  Court 
should  make  its  decree;  whether  for  £72,  which  was 
the  amount  of  the  recognizance,  or  for  £36,  which  was 
the  amount  of  the  presentment,  or  for  some  smaller 
sum?  And  in  the  latter  case,  by  what  principle  the 
amount  was  to  be  ascertained? 

In  the  same  case  it  appeared,  that  the  bridge  was  to 
have  been  built  over  a  stream  in  a  bog,  through  which 
a  new  line  of  road  was  to  be  made.  The  contract  for 
the  making  of  that  new  line  had  been  obtained,  not  by 
Wilson  (the  defendant),  but  by  another  person,  who 
had  not  made  the  road,  nor  attempted  to  make  it;  and 
until  that  road  should  be  made,  it  was  nearly  impossible 
that  the  materials  for  building  the  bridge  could  be 
brought  to  the  place  in  question;  in  the  mean  time,  the 
last  day  for  building  the  bridge  had  passed.  The  fourth 
49 


m 


pp 


f 


■i 


'  i 


i  i 


iw 


.  ., 


lit 


Mtj! 


314 


JEBB'S    RESERVED   CASES. 


[June  18 


question  was,  what  ought  to  be  the  decree  of  the  Court, 
in  reference  to  this  latter  circumstance? 

Eleven  Judges  having  met  ( Woulfe,  C.  B.,  being 
absent),  the  first  question  was  decided  by  a  large 
majority,  and  the  second  question  unanimously,  in 
favour  of  the  Attorney-General;  the  decision  being  that 
he  was  not  liable  to  pay  costs,  or  to  give  security  by 
recognizance,  in  the  case  proposed,  and  that  the  onus 
of  proving  that  the  bridge  had  been  built  lay  upon  the 
defendant.  On  the  other  questions,  there  was  no  deci- 
sion of  the  Judges,  but  from  what  appeared  to  be  their 
general  opinion,  upon  the  discussion  which  took  place 
on  those  points,  Foster,  B.,  considered  that  he  should 
[*3 15]  be  enabled  to  dispose  of  the  *  remaining  questions 
without  requiring  the  Judges  to  give  their  opinions 
seriatim  (a). 


(a)  See  this  case  {Attorney.General  v.  Wilson)  in  tlio  court  below,  reported  in 
1  Cr.  and  DixV  Circuit  Cases,  447.  From  tlic  conclusion  of  that  rc|K)rt  (p.  4">'J)  it 
appears  tliat  the  Icirncd  Baron  considered  the  third  question  (as  stated  in  the  text), 
to  have  been  viewed  by  the  Judges  agreeably  to  liis  own  opinion,  viz: — that  tiie  do- 
cree  siiould  be  fnt  tlie  amount  of  damage  actually  ("I'^taincd.  No  iiiention  is  made 
of  the  point  arising  on  tiie  4tli  question. 


'll 


[June  18 

)f  the  Court, 


1840.] 


REGINA  t).  MURPhY. 


315 


1  B.,  being 
by  a  large 
limously,  in 
n  being  that 
security  by 
liat  the  onus 
lay  upon  the 
was  no  deci- 
id  to  be  their 
!h  took  place 
it  he  should 
ing  questions 
leir  opinions 


;  below,  reported  in 
at  rc|)ort  (|).  45:3)  it 
s  stated  in  the  text), 
1,  viz:— tiiat  tlic  de- 
fc  rucntion  is  made 


THE  QUEEN  v.  PATRICK  MURPHY. 

The  prisoner  wns  indietcd  for  soliciting  J.  B.  to  murder  C.  M.  The  evidence  wav, 
that  the  prisoner  procurid  salt  pelrc  and  gave  it  to  J.  IJ.  to  he  adiiiiiiisterrd  to 
C.  M.  and  that  J.  B.  administered  it  aecordinglj-,  and  that  C.  M.  detected  the 
poison  in  time  to  save  Iter  life  after  having  swallowed  some  of  it.  The  Jury 
found  the  prisoner  guilty;  and  stated  tlieir  opinion  to  he,  that  the  Foiieitation 
was  to  adminii^ter  salt  petre  with  intent  to  poison,  and  that  the  salt  pctre  had 
been  uttem|)ted  to  he  ailnnnistetcd.  Held,  that  the  conviction  was  good,  the 
prisoner  iiaving  been  rightly  indietcd,  as  a  principal,  for  soliciting  to  murder, 
instead  of  as  an  accessary  before  the  fiiet  to  the  administering  poison  with  in- 
tent to  murder;  and  the  10  Geo.  4,  e.  34,  s.  9,  not  having  been  repealed  by  the 
1  Vict.  c.  t>5,  s.  3. 


At  the  Spring  Assizes  for  Corh,  in  1840,  Patrick  Mur- 
phy was  tried  before  Perrin,  J.,  on  an  indictment  which 
charged  that  he  on  the  6th  of  February,  3d  Vict.,  at 
Carrigshane,  did  feloniously  propose  to,  solicit,  encou- 
rage, and  endeavour  to  persuade  one  James  Barrett, 
feloniously,  and  of  his  malice  prepense,  to  kill  and  mur- 
der Catherine  Murphij,  against  the  peace  and  statutes. 

The  first  witness  was  James  Barrett,  who  swore  that 
he  was  arrested  for  giving  the  prisoner's  wife  something. 
The  prisoner  was  thatching  for  witness;  he  talked  of 
poisoning — if  he  could  get  his  wife  poisoned.  On  an- 
other day  he  said,  "  I  have  a  very  bad  wife,  and  a  very 
"disagreeable  one;  and  if  you  could  give  her  a  done,  of 
"salt  petre,  *as  I  attempted; — the  reason  why,  [*31G] 
"  I  have  another  in  view;  you'll  come  on  Sunday  morn- 


81 


316 


JEBB'S  RESERVED  CASES. 


}i 


4 


[June  19 

"  ing,  I'll  get  the  salt  petre  at  Mrs.  Rees's.''  The  wit- 
ness said  he  would,  and  on  Sunday  the  prisoner  took 
witness  to  Mrs.  Rees's  (a  shop-keeper),  and  gave  him  a 
pint  of  porter,  and  a  penny  to  buy  salt  petre,  which  the 
witnss  got;  the  prisoner  desired  the  witness  to  go  and 
call  on  Catherine  Murphy,  and  bring  her  down  to  a 
public  house,  kept  by  a  Mrs.  Blacket,  and  to  get  two 
pints  of  porter,  and  sweeten  one  of  them  well  for  her, 
that  she  might  not  taste  the  salt  petre :  witness  went 
accordingly  and  brought  her  down,  and  ordered  the 
porter  to  be  well  mulled  and  sweetened.  The  prisoner 
then  advised  witness  to  take  Catherine  Murphy  into  the 
far  room,  then  to  send  her  out  for  a  penny  bun,  and 
when  she  went  out,  to  put  the  salt  petre  in  her  pint; 
which  witness  did.  When  she  came  in  she  tasted  the 
porter,  and  drank  half  of  it;  she  perceived  the  taste,  and 
took  it  to  Mrs.  Blacket,  who  said  it  had  the  taste  of  soot; 
Mr.  Mansfield,  an  apothecary,  said  the  same,  but  he 
examined  it,  and  found  the  salt  petre.  Witness  was 
accordingly  arrested,  and  he  informed  against'  the  pri- 
soner. 

The  second  witness,  Edruard  Rees,  stated,  that  he  saw 
the  prisoner  and  Barrett  together,  and  Barrett  asked  for 
one  penny  worth  of  salt  petre :  witness  gave  him  two 
ounces,  which  he  gave  prisoner.  > 


III 


I     : 


Michael  Collins  proved  that  he  gave  Barrett  money ; 
saw  him  and  the  prisoner  together;  the  prisoner  said 


[June  19 

The  wit- 
isoner  took 
Tave  him  a 
which  the 
s  to  go  and  ' 
down  to  a 
to  get  two 
^-ell  for  her, 
itness  went 
ordered  the 
'he  prisoner 
yiliy  into  the 
ly  bun,  and 
in  her  pint; 
le  tasted  the 
iie  taste,  and 
taste  of  soot; 
ime,  but  he 
Witness  was 
linst*  the  pri- 


,  that  he  saw 
rett  asked  for 
ive  him  two 


irrett  money ; 
prisoner  said 


1840.] 


REGINA  V.  MURPHY. 


316 


to  witness,  that  Barrett  was  annoying  him  for  six-pence. 
Witness  said,  he  would  give  it,  and  did  so. 

Mary  Murphy  proved,  that  she  saw  Barrett  and  the 
prisoner's  *wife  get  two  pints  of  porter  at  Mrs.  [*317] 
Blachet's,  and  that  they  brought  them  to  them  into  the 
tap-room.  Mrs.  Murphy  went  out  for  a  penny  bun,  and 
when  she  returned  she  took  a  pint,  but  did  not  finish 
it;  one  of  the  pints  was  mulled. 

ToUas  Mansfield,  an  apothecary,  stated,  that  he  hap- 
pened to  be  passing,  and  saw  two  persons  complaining 
of  some  porter  being  bad ;  witness  drained  it  out,  and 
found  salt  petre  at  the  bottom  of  the  porter,  which  was 
warm.  The  woman  complained  of  pain  in  her  stomach, 
and  witness  gave  her  an  emetic.  She  drank  three- 
foUi-ths  of  a  pint;  witness  thought  it  would  cause  serious 
injury. 

Richard  Barrett  stated,  that  he  was  present  when  the 
prisoner  was  arrested;  witness  said  the  police  were 
coming  to  take  him,  and  the  prisoner  asked,  was  the 
woman  dead  ? 

William  Murphy,  M.  D.,  stated,  that  two  ounces- of 
salt  petre  would  poison  any  one. 

Richard  Oates  stated,  that  he  found  sab,  petre  in 
Barrett's  pockets;  and  that  he  heard  the  prisoner  say, 


i 


317 


JEBB'S  RESERVED  CASES. 


[Juno  19 


r 


H 


^  ivA 

1  ''  U  !  1 

^■'i|; 

'  t  ■' 

1' 

that  his  wife  wished  to  spend  all  his  money,  and  that 
the  devil  seemed  to  melt  it. 

The  case  for  the  prosecution  being  closed,  Flanagan, 
for  tl:e  prisoner,  contended  that  the  indictment  was  not 
sustained  by  the  evidence;  that  the  prisoner  should 
have  been  indicted  as  an  accessary  before  the  fact,  for 
administering  poison  with  intent  to  murder,  and  not 
under  the  9th  section  of  the  10  G,  IV.  c.  34,  it  appearing 
by  the  evidence,  that  James  Barrett  (the  approver)  actu- 
ally administered  the. salt  petre  to  Catherine  Murphy ; 
[*318]  and  that  *  the  9th  section  of  the  10  G.  IV.  c.  34, 
making  the  solicitation  to  commit  murder  a  capital  fe- 
lony, was  impliedly  repealed  by  the  subsequent  statute 
of  I  Vict.  c.  85,  s.  3,  making  the  attempt  to  administer 
poison,  with  intent  to  commit  murder,  a  transportable 
felony.  The  learned  Judge,  however,  after  having 
heard  the  counsel  for  the  Crown  in  reply,  left  the  case 
to  the  jury  upon  the  evidence  generally,  stating  that  he 
would  reserve  these  questions  for  the  consideration  of 
the  Judges;  and  he  requested  the  jury,  if  they  believed 
the  evidence,  and  found  a  verdict  of  guilty,  to  inform 
him  whether  they  were  of  opinion  that  the  solicitation 
had  been  to  murder  generally,  or  to  administer  salt  petre 
with  intent  to  murder ;  and  that  the  salt  petre  had  been 
administered,  or  only  attempted  to  be  administered. 
The  jury  found  the  prisoner  guilty,  and  in  compliance 
with  the  request  of  the  learned  Judge,  informed  him 
that  they  were  of  opinion  that  the  solicitation  had  been 


[Juno  19 

y,  and  that 


,  Flanagan, 
ent  was  not 
)ner  sliould 
the  fact,  for 
er,  and  not 
it  appearing 
trover)  actu- 
•ne  Murphy; 
G.  IV.  c.  34, 
a  capital  fe- 
uent  statute 
0  administer 
lansportable 
ifter   having 
left  the  case 
iting  that  he 
isideration  of 
hev  believed 
ty,  to  inform 
e  solicitation 
Iter  salt  petre 
itre  had  been 
idministered. 
Q  compliance 
nformed  him 
ion  had  been 


1840.] 


CHARTERS  v.  GILROY. 


318 


to  administer  salt  petre  with  intent  to  poison,  and  that 
the  salt  petre  had  been  attempted  to  be  administered. 

The  question,  whether  the  conviction,  under  the  fore- 
going circumstances,  was  good,  having  been  reserved 
for  the  opinion  of  the  Judges,  the  case  was  argued  before 
ten  of  their  Lordships  [Doherty,  C.  J.  C.  Pleas,  and 
WouJfe,  C.  B.,  being  absent),  by  Flanagan  for  the  pri- 
soner, and  G.  Bennett  for  the  Crown.  Six  Judges 
(BusiiE,  C.  J.,  Burton,  J.,  Pennefather,  B.,  Cramp- 
ton,  J.,  Richards,  B.,  and  Ball,  J.,)  were  of  opinion, 
that  the  conviction  was  good.  The  remaining  four  held 
that  it  was  bad. 

Perrin,  J.,  subsequently  recommended  a  commutation 
of  the  punishment,  to  transportation  for  life. 


CHARTERS,  Appellant— GILROY,  Respondent.  [*319] 


Assistant  Barristers  have,  under  the  6  &  7  W.  4,  c.  TS,  s.  2,  jurisdiction  to  hear 
and  determine  disputes  and  differences  respecting  the  possession  of  lands  held 
from  year  to  year. 


At  the  Spring  Assizes  for  the  county  of  Fermanagh  in 
1840,  a  question  was  raised  before  Foster,  B.,  upon  an 
appeal  from  a  civil  bill  decree  of  the  Assistant  Barrister 


m] 


nis 


'  ,1?:: 


919 


JEBB'S   RESERVED   CAIT^S. 


[Juno  19 


of  the  county,  which  'he  learned  Baron  reserved  for  the 


consideration  of  the  Judges. 


The  question  vv^as,  whether  land  which  is  held  by  a 
tenancy  from  year  to  year  is  within  the  meaning  of 
"  lands,  tenements,  and  hereditaments,  held  under  any 
"  grant,  lease,  or  other  instrument,"  as  these  words  are 
used  in  the  6  &  7  W.  IV.  c.  75,  s.  2? 


Ten  Judges  {Dohertij,  C.  J.,  and  Woulfe,  C.  B.,  being 
absent)  unanimously  held,  that  leases  from  year  to  year 
are  included  in  the  enactment. 


[*320]    MURPHY,    in   Replevin,   Appellant— BUTLER   and 
Others,  Respondents. 


i'<: 


The  6th  section  of  the  G  &  7  W.  4,  c.  75,  prescribing  a  notice  to  be  given  by  the 
party  distraining  to  the  party  distrained,  is  mandatory. 


P  fe' 


pi 

Hi  ':'  • ' 


The  respondents,  as  trustees  of  the  estates  of  the  Earl 
of  Carricli,  a  minor,  distrained  the  appellant,  a  tenant 
holding  from  year  to  year,  for  rent.  At  the  time  of 
making  this  distress  the  respondents  caused  the  follow- 
ing notice  to  be  served  on  the  appellant  by  their  bailiff: 
•*  Take  notice  that  I  have  distrained  your  oats,  consisting 


[Juno  19 

ved  for  tlie 

;  held  by  a 

meaning  of 

under  any 

e  words  are 

C.  B.,  being 
year  to  year 


1840.] 


MURPHY  V.  BUTLER. 


BUTLER  and 


;e  to  be  given  by  the 
ndatory. 

ies  of  the  Earl 
ellant,  a  tenant 
At  the  time  of 
used  the  follow- 
by  their  bailiff: 
r  oats,  consisting 


"  of  in  or  about  38  barrels,  for  rent  and  arrears  of  rent 
•'  due  to  the  trustees  of  the  Earl  of  Carrick,  on  the  lands 
**  of  Newtown. 
"  To  William  Murphy. 
"Oct.  7th,  1839. 

"Gregory  Roach." 

On  the  9th  of  October,  1839,  the  appellant  obtained 
the  usual  replevin  order  from  the  Sheriff,  and  in  that 
way  obtained  back  his  property  which  had  been  so  dif.- 
trained.     The  replevin  civil  bill  suit  thus  instituted 
came  on  before  the  Assistant  Barrister  at  the  followino- 
Quarter  Sessions,  when  he  dismissed  the  civil  bill. 
From  that  decision  the  plaintiff  in  the  civil  bill  suit 
appealed,  and  the  case  came  on  before  Richards,  B.,  at 
the  Spring  Assizes  for  the  City  of  Kilkmnij,  in  1840. 
The  learned  Baron  was  of  opinion  upon  the  merits  with 
the  respondents,  and  was  prepared  to  decree  for  the 
respondents  for  the  arrear  of  rent  due  to  the  gale  day 
preceding  the  distress,  and  to  order  that  the  replevin 
bond  entered  into  by  the  appellant  should  be  assigned 
over.     The  appellant,  however,  insisted,  that  the  notice 
served  on  him  at  the  time  of  the  distress  was  not  con- 
formable to  the  *  provisions  of  the  6  &  7  Wm.  [*321] 
IV.  c.  75,  s.  G  {a),  and  that  the  learned  Baron  had  no 
jurisdiction  to  make  any  decree  against  him;  that  whe- 
ther he  owed  rent  or  not,  he  was  entitled  to  recover 


(a)  Under  which  the  particular  of  the  rent  demanded  must  specify  the  aniouiif, 
and  the  time  or  times  when  the  same  accrued  due. 

50 


!'.■ 


I;        1 


11 


I 


891 


JEDB'S    RESERVED   CASES. 


[Juno  19 


damages  in  the  civil  bill  suit  instituted  by  him  against 
them;  that  the  words  in  the  Act  of  Parliament  relating 
to  the  service  of  notice  were  not  directory  merely,  but 
mandatory;  and  that  the  rcsjwndents  not  having  served 
a  notice  such  as  prescribed  by  the  Act  of  Parliament  in 
distraining  for  rent,  were  trespassers. 

Contradictory  decisions  by  various  previous  Judges 
upon  the  construction  of  this  clause  in  the  statute  hav- 
ing been  cited,  the  learned  Baron  reserved  the  following 
question  for  the  consideration  of  the  Judges :  Whether 
he  was  bound  to  have  made  a  decree  in  favor  of  the 
appellant  on  account  of  the  insufficiency  of  the  notice 
served  on  him  at  the  time  of  the  distress,  notwithstand- 
ing that  there  was  an  arrear  of  rent  due  to  the  defend- 
ants at  the  time  of  the  distress,  and  that  the  defendants 
had,  in  the  opinion  of  the  learned  Baron,  a  lawful  right 
to  distrain  for  the  same  ? 

The  Judges  met  to  consider  this  case,  which  was 
discussed  at  considerable  length  on  the  18th  and  19th 
of  June.  On  the  latter  day  it  was  decided  by  seven 
out  of  ten  Judges,  {Doherty,  C.  J.,  and  Woulfe,  C.  B., 
being  absent,)  that  the  clause  in  question  is  mandatory 
upon  the  landlord ;  the  other  three  Judges  holding  that 
it  is  directory  only. 


I 


1 


[Juno  19 

m  against 
t  relating 
eroly,  but 
n<r  served 
iumeut  in 


}s  Judges 
atute  liav- 
following 
Whether 
voY  of  the 
the  notice 
withstand- 
he  defend- 
lefendants 
wful  right 


vhich  was 
and  19th 

by  SEVEN 

life,  C.  B., 
mandatory 
siding  that 


1810.] 


CO.    FERMANAOII   ROAD   TRAVERSE. 


323» 


*IN   tho  Matter  of  a  TRAVERSE   fur   inutility  of  a  Roa.l 
rrosoiiiiiiciit,  County  FERxMAiNACJII. 

Tho  two  days'  notice  of  a  rond  traverse  for  inutility  ro(|uircd  l)y  tlio  133(1  sec.  of 
the  fi  iV,  7  \V.  J,  c.  1  l(i,  means  a  notieo  within  two  days  of  tho  first  Sessions  at 
which  tiio  ii|)|)lioatioii  for  tlic  road  was  approved,  under  s.  27  of  tliut  act,  and  not 
within  two  days  of  tlio  SebsionB  ullur  tiic  Assizes,  under  8.  28. 

At  the  EmiisJdlkn  Summer  Assizes,  in  1840,  a  traverse 
was  taken  to  a  road  presentment  for  inutihty.  The 
presentment  was,  to  make  600  perches  of  a  new  road 
from  Belturhet  to  Derygondhj,  at  £  1  75.  (Sd.  per  perch, 
payable  by  six  instalments.  The  application  had  been 
made  at  the  January  presentment  sessions,  in  1840,  and 
there  approved  of  The  county  surveyor  was  directed 
to  prepare  the  necessary  plans,  specifications,  and  maps, 
in  pursuance  of  the  provisions  of  tiie  27th  section  of  the 
6  &  7  Wm.  IV.  c.  116.  These  were  laid  before  the 
Grand  Jury,  at  the  following  Spring  Assizes,  and  there 
certified;  and  subsequently,  they  were  laid  before  the 
presentment  sessions  next  following,  viz.  the  May  ses- 
sions, and  there  approved  of  and  adopted,  pursuant  to 
the  28th  section.  At  the  Summer  Assizes  followinsr, 
the  Grand  Jury  made  the  presentment  above  stated,  and 
it  was  traversed  for  inutility.  No  notice  of  an  intention 
to  traverse  was  served  within  two  days  of  the  first  day 
of  the  January  sessions,  at  which  the  application  was 
first  made;  but  a  notice  was  served  within  the  two  first 


jr.nn'R  reserved  cases. 


[November 


(lays  of  llio  Matj  sessions,  nt  wliicli  the  application,  spe- 
cifications, and  plans,  wore  considered,  approved,  and 
adopted. 

It  was  objected  on  the  part  of  those  concerned  for  the 
presentment,  that  the  notice  given  in  this  case  was  too 
late,  and  that  the  notice  required  by  the  133d  section  of 
the  Act  must  he  served  witiiin  two  days  after  the  first 
day  of  the  presentment  sessions  at  which  the  application 
was  first  made,  viz.  the  January  sessions ;  and  Murph/s 
case,  1  Cr.  and  Dix's  Circuit  Cases  222,  was  relied  upon. 


[*323]  Pennefather,  B.,  ordered  a  jury  to  be 
impanneled,  to  try  the  traverse,  subject  to  the  objection. 
The  jury  not  agreeing,  they  were  discharged;  and  the 
learned  Baron  reserved  for  the  opinion  of  the  Judges 
the  question,  whether  the  traverse  could  properly  be 
taken  at  the  Summer  Assizes,  the  notice  of  the  inten- 
tion to  traverse  not  having  been  given  until  the  May 
sessions. 

Eight  Judges  [Johnson,  J.  being  absent;  Brady,  C. 
B.,  Pennefather,  B.,  and  Richards,  B.,  dissentientihus,) 
decided  against  the  traverse,  on  the  ground  that  the 
notice  was  too  late. 


«i''i 


[November 

ation,  spc- 
roved,  and 


led  for  the 
ise  was  too 
[  soction  of 
er  the  first 
application 
1  Murph/s 
elied  upon. 

ury  to  be 
)  objection. 
J;  and  the 
;he  Judges 
)roperly  be 
the  inten- 
1  the  May 


Brady,  C. 
ntientihus,) 
id  that  the 


1840.] 


MAYO   PRESENTMENT. 


IN  the  Matter  of  a  JUDGE'S  ORDER  for  tho  repayment  of 
sums  nclvnnccd  by  Government  to  the  SHANNON  COM- 
MISSIONERS. 

A  ct-rtificnto  of  tlio  Sliantion  Nnvijfation  (^oiiimiHHionors  uHccrtuinirig  the  sums 
rfpiiyolilc  by  n  coiuily,  undir  the  2  &,  .'J  Vict.  c.  Ol,  8.  fit,  w  not  dcfcrtivc  for 
Btiitiiijr  that  II  particular  suin  iH  to  be  levied  otV  one  bnrony,  and  (or  bcinjj  Hiicnt 
OH  to  the  proportions  to  bu  levied  otTtho  other  baronies ;  and  tlie  Judge  of  A»si/.o 
is  authorized,  upon  Iho  refusal  of  the  Grand  Jury  to  present  in  pursuance  of  such 
a  certificate,  to  niako  an  order  under  section  (j.5,  directing  tho  specified  sum  to 
bo  levied  off  tliut  one  barony,  and  Iho  rcuiJuo  roteahly  off  tiio  other  baronies. 

The  following  certificate,  under  the  hand  and  seal  of 
two  of  the  Commissioners  for  the  improvement  of  the 
river  Shannon,  appointed  under  the  2  and  3  Vict.  c.  61, 
was  laid  before  the  Grand  Jury  of  the  county  of  Mayo, 
at  the  Summer  Assizes  in  1840,  by  their  secretary,  to 
whom  it  had  been  transmitted  by  the  directions  of  the 
commissioners.  "  Whereas,  in  pursuance  of  the  provi- 
"  sions  of  an  Act  of  Parliament  passed  in  the  2d  and  3d 
"  years  of  the  reign  of  her  present  Majesty  Queen  Vic- 
"  toria,  entitled,  '  An  Act  for  the  improvement  of  the 
" ' navigation  of  the  river  Shannon'  we,  Sir  John  Fnx 
"  Burgoyne,  Harry  David  Jones,  and  Richard  Griffith, 
being  the  commissioners  duly  constituted  and  appoint- 
"  ed  for  the  execution  of  said  Act  of  Parliament,  have 
"  caused  an  account  to  be  taken  *  of  all  monies  [*324] 
"  which  have  been  issued  to  us  as  such  commissioners 
"  by  the  commissioners  of  her  Majesty's  treasury,  in 


(( 


I 


,1 


I 


i 

(  ! 


■ii' 


j^ 


i 


\i    '1' 


^■1 


!  I 


*'(! 


334  JERB'S   RESERVED  CASES.  [November  27 

**  Exchequer  bills  or  cash,  for  the  purposes  of  said  Act 
"  of  Parliament,  from  the  commencement  of  said  Act  of 
"  Parliament  up  to  the  ISlli  day  of  June,  in  the  year  of 
"  our  Lord  1S40,  being  the  day  up  to  which  said  account 
"  was  so  taken.  And  whereas  we  have  also  ascertained, 
"  having  had  regard  to  the  awards  mentioned  in  said 
"  Act  of  Parliament,  and  pursuant  to  the  provisions  of 
"  said  Act,  that  the  sum  of  £  1181  155.  8t/.  is  the  amount 
"  of  said  monies  now  repayable  by  the  said  county  of 
"  Mayo,  and  that  the  same  is  now  repayable  with  inter- 
"est,  at  the  rate  of  £4  per  cent,  per  annum:  Now  we, 
"  the  said  Sir  John  Fox  Burgoyne,  Harry  David  Jones, 
"  and  Richard  Griffith,  as  such  commissioners  as  afore- 
"  said,  having  had  regard  to  the  said  account  and  awards 
"  and  to  the  provisions  of  said  Act  of  Parliament,  do 
"  hereby,  in  pursuance  of  said  Act,  certify  under  our 
"hands,  that  the  sum  of  £1203  35.  \\d.  being  the 
"amount  of  said  principal  sum  of  £1181  155.  8^., 
"together  with  the  sum  of  £21  75.  5|J.,  for  interest 
"thereon,  from  the  time  when  the  said  monies  were 
"  issued  to  us  as  aforesaid,  up  to  the  said  15th  day  of 
"  June,  1840,  is  the  sum  now  repayable  by  said  county 
"  of  Mayo,  as  aforesaid,  and  that  the  same  is  to  be  pre- 
"  sented  at  the  next  ensuing  assizes,  by  the  Grand  Jury 
"  of  said  county.  And  we  hereby  further  certify  and 
"specify  that  the  said  sum  of  £  1203  35.  \\d.  is  to  be 
"  raised  and  levied  as  follows :  that  is  to  say — that  the 
"  sum  of  £57  155.  ^\d.  being  part  of  said  sum,  is  to  be 
"  raised  and  levied  upon  and  off  the  barony  of  Costelloe, 


mmm.^ 


[November  27 

■  said  Act 
xid  Act  of 
lie  year  of 
d  account 
icertained, 
ed  in  said 
5visions  of 
le  amount 
county  of 
vith  inter- 
Now  we, 
wid  Jones, 
s  as  afore- 
nd  awards 
ament,  do 
under  our 
being  the 
15s.  8^., 
DV  interest 
>nies  were 
5th  day  of 
aid  county 
1  to  be  pre- 
rrand  Jury 
certify  and 
d.  is  to  be 
— that  the 
m,  is  to  be 
f  Costelloe, 


1840.] 


MAYO    PRESENTMENT. 


334 


i 


"in  said  county;  and  that  the  sum  of  £1145  75.  11 1 J., 
"bein<v  the  residue  of  said  sum  of  £;i'203  3^.  lUl,  is 
"  to  be  raised  and  levied  upon  and  off  the  *  other  [*325] 
"  baronies  of  said  county.  And  we  hereby  further  cer- 
"  tify  that  the  said  several  sums,  making  together  the 
"  said  sum  of  £  1203  Hs.  l^d.  are  to  be  repaid  and  levied 
"  by  such  instalments  and  with  such  interest  as  in  said 
"  Act  of  Parliament  is  specified.  All  which  we  certify 
"  under  our  hands  and  seals  this  8th  day  of  July,  1840. 

"  j.  f.  burgoyne. 

"  Harry  D.  Jones." 

The  Grand  Jury  refused  to  p-esent  the  sum  specified 
in  the  certificate,  or  any  sum,  and  insisted  that  it  was 
most  unjust  to  charge  the  county  of  Mayo  with  the  sum 
demanded,  or  with  any  part  of  it.  They  also  insisted 
that  the  certificate  was  not  in  conformity  with  the  2 
and  3  Vic.  c.  Gl,  s.  65,  inasmuch  as  it  did  not  state 
(except  in  respect  to  the  barony  of  CosteUce,)  the  parti- 
cular sum  that  each  of  the  other  baronies  should  contri- 
bute to  make  up  the  residue  of  the  sum  demanded  over 
and  above  the  sum  required  from  the  barony  of  Costelloe: 
that  it  was  evident  that  the  entire  sum  was  not  to  be 
levied  generally  off  the  county  at  large,  (a  particular 
sum  being  applotted  on  one  barony,)  and  therefore  that 
the  commissioners  were  bound  to  specify  in  their  cer- 
tificate what  sum  should  be  raised  by  each  of  the  other 
baronies;  the  words  of  s.  65  of  the  Act  being,  that  the 
sum  "  shall  be  raised  and  levied  fi'oni  and  off  the  county 


335 


<( 


JEBB'S    RESERVED    CASES.  [November  27 


at  large,  or  from  and  off  the  barony  or  baronies  named 
"  in  sucb  certificate  and  order."  The  Grand  Jury  com- 
plained that  they  were  at  a  loss  from  the  manner  in 
which  the  certificate  was  prepared  to  ascertain  how  and 
in  what  proportion  they  should  allocate  the  residue  of 
the  sum  demanded  amongst  the  other  baronies;  and  in 
the  end  they  refused  to  present  for  ^"ly  sum  whatsoever. 


[*326]  Richards,  B.,  (the  Judge  of  assize)  was  then 
called  on  by  the  crown  solicitor  and  counsel,  to  direct 
that  the  sum  specified  in  ili,3  certificate  should  be  placed 
on  the  levy,  and  inserted  in  the  treasurer's  warrant,  by 
an  order  pursuant  to  the  65th  section  of  the  Act;  which 
his  lordship  accordingly  did,  by  an  order  which  recited 
the  certificate,  and  directed  that  £  57  should  be  levied 
off  the  barony  of  Costelloe,  "and  the  residue  off  the 
other  baronies;"  and  that  the  several  sums  should  be. 
levied  by  such  instalments,  and  with  such  interest  as 
the  statute  specified. 


The  Grand  Jury,  however,  s+rongly  resisted  this 
measure,  on  the  grounds  before  liiC  li'^ned;  and  further 
insisted  that  it  never  could  have  befcii  intended  by  the 
commissioners  that  the  several  baronies  of  the  county 
(with  the  exception  of  Costelloe,)  should  contribute  each 
in  proportion  to  the  number  of  acres  chargeable  with 
county  cess  contained  therein  respectively,  to  make  up 
the  sura  demanded;  some  of  the  baronies,  and  the 
largest  of  them,  lying  much  more  remote  than  others 


[November  27 

nies  named 
Jury  corn- 
manner  in 
in  how  and 
I  residue  of 
ies;  and  in 
tvhatsoever. 

i)  was  then 
el,  to  direct 
d  be  placed 
warrant,  by 
Act;  which 
lich  recited 
Id  be  levied 
due  off  the 
s  should  be. 
interest  as 


1840.] 


MAYO   PRESENTMENT. 


33G 


from  the  Shannon,  and  some  of  them  being  altogether 
incapable  of  receiving  any  kind  of  benefit  from  the 
contemplated  improvement  of  the  navigation  of  that 
river,  as  they  alleged.  Under  these  circumstances  the 
learned  Baron  thought  it  right  to  respite  the  present- 
ment, and  to  obtain  the  opinion  of  the  Judges,  as  to 
whether  he  was  right  in  making  the  order  in  question, 
under  the  circumstances  above  detailed. 

Nine  Judges  {Brady,  C.  B.,  Perrin,  J.,  and  Richards, 
B.,  being  absent,)  unanimously  decided  against  the  ob- 
jections, and  in  favour  of  the  Judge's  order. 


esisted  this 
and  further 
nded  by  the 
the  county 
tribute  each 
^eable  with 
to  make  up 
3S,  and  the 
than  others 


51 


i  i« 


I  l/i 


INDEX 


TO 


THE    PRINCIPAL    MATTERS. 


ABDUCTION. 

An  indictment  for  abduction  stated  in  one  count,  that  the  pri- 
soner on,  &c.,  at,  &c.,  upon  one  H.  G.  then  and  there  being, 
did  make  an  assault,  and  her  the  said  H.  G.  did  carry  away. 
Another  count  stated,  in  the  same  terms,  an  assault  and  ab- 
duction by  persons  unknown,  and  that  the  prisoners  were 
then  and  there  present,  aiding  and  abetting.  Held,  by  eight 
Judges  against  three,  that  the  indictment  was  bad  for  want 
of  a  venue. 

It  is  no  valid  objection,  that  such  an  indictment  (under  the  19 
G.  2,  c.  13)  concludes  against  the  form  of  the  "statute,"  in- 
stead of  "  statutes."    Rex  v.  Browne.  Page  21 

ACCESSARY. 
See  Murder,  3. 

ACCOMPLICE. 

1.  Held,  unanimously,  by  eleven  Judges,  that  the  testimony  of 
an  accomplice,  though  altogether  uncorroborated,  is  evidence 
to  go  to  a  jury;  that  a  conviction  upon  such  evidence  is  legal; 
and  that  there  can  be  no  general  rule  as  to  the  cautionary 
directions  to  be  given  to  the  jury  respecting  his  evidence. 
But  held  also  (by  six  Judges  to  five)  that  the  jury  should,  in 
the  generality  of  cases,  be  told,  that  it  was  the  practice  to 


404 


INDEX 


n-i 


ACCOMVUCE— continued. 

disregard  the  accomplice's  testimony,  unless  there  was  some 
corroboration;  and  that  corroboration  as  to  the  circumstances 
of  the  case  merely,  and  not  as  to  the  person  charged,  is  de- 
serving of  very  slight  consideration.  Rex  v.  <^licehan.  Page  54 
2.  Where  there  was  no  other  corroboration  of  the  testimony 
of  an  accomplice,  with  respect  to  the  person  of  one  of  the 
prisoners,  but  the  evidence  of  the  accomplice's  wife,  who 
herself  appeared  to  be  implicated  in  the  guilt  of  the  trans- 
action: Held,  that  the  Judge  was  right  in  not  directing  an 
acquittal,  but  in  leaving  the  case  to  the  jury,  with  observa- 
tions upon  the  general  objections  to  the  credit  of  those  wit- 
nesses; and  that  a  conviction  under  these  circumstances  was 
good.    Rex  V.  Casey  4*  M'Cue.  Page  203 

ADJOURNED  ASSIZES. 
The  110th  section  of  the  6  &  7  W.  IV.  c.  110,  does  not  autho- 
rize a  presentment  to  the  Clerk  of  the  Crown,  or  the  under- 
Sheriff,  for  duties  performed  at  an  adjourned  Assizes.    Cavan 
Presentment.  288 

ADMIRALTY. 

See  Special  Commission,  1. 

AFFIDAVIT. 

An  affidavit  upon  "knowledge  and  belief,"  under  s.  11,  of  the 
Peace  Preservation  Act,  (54  G.  PI.  c.  131),  made  by  the 
Chief  Magistrate  alone,  is  insufficient.  County  Donegal  Pre- 
sentment. 27 

ANIMUS. 

A  person  entrusted  to  drive  a  number  of  sheep  a  certain  dis- 
tance, and  on  the  way  separating  one  of  them  from  the  rest, 
with  the  intention  of  fraudulently  converting  it  to  his  own 
use,  is  not  guilty  of  larceny.  In  such  a  case  the  animus 
furandi  upon  the  original  taking  should  be  left  to  the  jury. 
Rex  V.  Reilhj.  51 

APPROVER. 

See  Accomplice. 


^**"*^^ffnT^^^ 


TO    THE    PRINCIPAL    MATTERS. 


405 


e  was  some 
cumstanccs 
irgcd,  is  dc- 
m.   Page  54 
c  testimony 
one  of  tiie 
s  wife,  who 
)f  the  trans- 
directing  an 
ith  observa- 
jf  those  wit- 
nstances  was 
Page  203 

;s  not  autho- 
)r  the  under- 
izcs.    Cavan 

288 


■  s.  11,  of  the 

made  by  the 

Donegal  Pre- 

27 

a  certain  dis- 
from  the  rest, 
it  to  his  own 
e  the  animus 
\  to  the  jury. 
51 


ARMS. 

1.  A  presentment  to  the  Clerk  of  the  Peace,  for  his  trouble  in 
registering  arms,  under  the  47  G.  III.  c.  54,  (revived  by  10 
G.  IV.  c.  47)  held  to  be  illegal,  by  force  of  the  4  G.  IV.  c. 
43,  s.  1,  ((5  &  7  VV.  IV.  c.  116,  s.  110).  Mnaghan  Present- 
menl.  Page  \\\ 

2.  The  27  G.  III.  c.  15,  s.  10,  so  far  as  it  relates  to  the  takin^r 
of  arms,  without  the  consent  of  the  owner,  is  repealed  by 
the  1  &  2  W.  IV.  c.  44,  s.  2,  and  therefore  an  indictment 
for  such  an  oflence,  as  for  a  llalony,  cannot  be  supported. 
Rex  V.  Maguire.  ly^ 

ARREARS. 

See  GovERNME\T  Advances. 

ARREST. 

A  person  in  custody,  under  an  illegal  arrest,  is  entitled  to  be 
discharged  from  collusive  detainers  lodged  at  the  same  time, 
and  bond  fide  detainers  subsequently  lodged  with  the  same 
Sherifl";  but  not  from  bond  fide  detainers  lodged  with  the 
Marshal  of  the  marshalsea,  to  which  he  had  been  removed 
by  habeas  corpus,  upon  his  own  application.  In  re  Soid/i- 
icclL  164 

ASSISTANT  BARRISTER. 
See  Civil  Bill. 

ASSIZES. 

Held,  that  the  notice  of  traverses  directed  to  be  given  by  the 
3  &  4  W.  IV.  c.  78,  s.  55,  previous  to  the  commencement  of 
the  assizes,  should  be.  given  previous  to  the  swearing  of  the 
Grand  Jury  for  fiscal  business.  Such  traverses,  when  entered 
too  late  at  one  assizes,  cannot  be  tried  at  the  next.  Countij 
Kilkemiij  Presentment.  i<)2 

BAILIFF. 
Sec  MaiVSlaughter,  2. 

BAILMENT. 

See  LarcEiW,  1. 


S 


40G 


INDEX 


n 


,ir  jy 


;!   .'♦' 


J  i 


BANKS  OF  IRELAND  AND  SCOTLAND. 
See  Forgery,  1,  2. 

BIGAMY. 

On  a  trial  for  bigamy,  where  the  first  marriage  took  place  in 
Scotland,  it  is  not  necessary  that  the  validity  of  that  mar- 
riage should  be  proved  by  a  person  conversant  with  the  laws 
of  Scotland;  but  it  is  sufficient  if  the  jury  believe  that  there 
was  in  fact  a  valid  marriage  according  to  the  laws  of  that 
country.    Regina  v.  Charleton.  Page  207 

BOARDS  OF  HEALTH. 

See  GovEhNMENT  Advances. 

BREAKING. 
5ee  Burglary,  2. 

BRIDEWELLS. 

A  medical  officer  cannot  be  lawfully  appointed  by  a  county 
grand  jury  for  a  bridewell.  The  amount  of  a  bill  for  medicines 
for  prisoners  in  a  bridewell  may  be  presented,  if  furnished  by 
the  apothecary  of  the  county  jjaol,  but  not  otherwise.  Wick- 
low  Presentment  .  44 

BRIDGES. 

A  presentment  made  by  a  grand  jury  at  the  assizes  upon  the 
memorial  of  a  contractor  for  building  a  bridge  to  cover  the 
additional  expenses  incurred  by  the  contractor,  in  conse- 
quence of  a  change  in  the  site,  is  illegal.  A  presentment  of 
an  attorney's  bill  of  costs,  furnished  to  the  county  overseers, 
for  preparing  a  contract,  &c.,  for  building  a  bridge,  is  illegal. 
Meath  Presenlment.  139 

See  Presentment,  12. 

BURGLARY. 

1.  An  indictment  for  burglary  in  a  gate  house,  s'ating  it  to  be 
the  dwelling  house  of  the  gate  keeper,  is  bad.  Rex  v.  Ca- 
hill.  36 

2.  The  getting  the  head  out  through  a  skylight  is  a  sufficient 


TO   THE   PRINCIPAL    MATTERS. 


407 


)ok  place  in 
f  that  mar- 
ilh  the  laws 
^c  that  there 
laws  of  that 
Page  207 


1  by  a  county 
for  medicines 
f  furnished  by 
irwise.  Wick- 
44 


sizes  upon  the 
re  to  cover  the 
5tor,  in  conse- 
prescntment  of 
unty  overseers, 
ridge,  is  illegal. 
139 


,  s'ating  it  to  be 
id.    Rex  V.  Ca- 
se 
ht  is  a  sufficient 


BURGLARY—continued. 

breaking  out  of  a  house  to  constitute  burglary.    Rex  v. 
M'Kearney.  p^gf.  99 

BURNING. 

1.  The  owner  of  a  yacht  is  not  entitled  to  compensation  for  the 
malicious  burning  of  it,  under  the  19  &  20  G.  3,  c.  37. 
Galway  Presentment.  71 

2.  To  support  a  burning  petition  under  the  19  &  20  G.  3,  c.  37, 
a  written  notice  upon  the  high  constable,  according  to  the 
provisions  of  the  9  W.  3,  c.  9,  is  necessary,  and  such  notice 
must  be  served  within  six  days  after  the  injury.  County 
Antrim  Presentment.  I44 

3.  Held,  that  the  4  G.  4,  c.  43,  s.  1,  did  not  preclude  clerks  of 
the  crown  or  judges'  criers  from  taking  fees  on  burning  pe- 
titions ;  and  that  these  fees  might  be  included  in  the  present- 
ments, as  part  of  the  damages  sustained  by  the  petitioners. 
Armagh  Presentment.  182 

See  Malicious  Injuries. 

CHALLENGE.    See  Jury,  4. 
CHATTELS. 

1.  Cows  are  not  chattels  within  the  meaning  of  the  9  G.  4,  c. 
55,  ss.  40,  41,  42.     Rex  v.  Deneny.  255 

2.  Where  a  statute  made  the  stealing  of  a  promissory  note  lar- 
ceny, and  a  subsequent  statute  provided  for  the  punishment 
of  receivers  of  stolen  "goods  or  chattels:"  Held,  that  pro- 
missory notes  were  goods  within  the  meaning  of  the  latter 
act.    Rex  v.  Crone.  47 

CHILD. 

An  indictment  against  a  woman  for  the  murder  of  her  child, 
not  stating  that  the  child  was  born  alive,  but  stating  that  it 
was  exposed  by  the  prisoner,  and  in  consequence  "languish- 
ed, and  languishing  did  live  for  half  an  hour,  and  then  died," 
and  "that  so  the  prisoner  did  kill  and  murder  the  child  in 
manner  aforesaid,"  is  good.  Semblo,  that  an  indictment  for 
the  murder  of  a  "certain  male  child,"  without  further  des- 
cription, is  insufficient.    Regina  v.  Kelly.  299 


ill 


(:|^ 

i 


11 


l!i 


S|i 


INDEX 


408 

CITIT,DUEN. 

Sec  Dkskiitrd  CiiiLDiiRy. 

CIVIL  BILL. 

1.  It  is  no  defence  to  an  indictment  for  shooting  at  with  intent 
to  kill,  that  the  offence  was  committed  in  resistiince  to  tiic 
execution  of  a  civil  hill  ejectment  decree,  and  that  no  alfi- 
davit  verii'ying  the  civil  hill  had  hecn  lodged  with  the  clerk 
of  the  peace.     Jlcx  v.  Larhin.  Page  00 

2.  A  decree  was  made  for  a  plaintiff  in  a  civil  bill  replevin  on 
the  non-appearance  of  the  defendant.  The  defendant  after- 
wards appearing  during  the  sessions,  the  assistant  barrister 
allowed  him  to  enter  his  appearance  nunc  pro  tunc,  for  the 
purpose  of  apjiealing,  and  in  the  meantime  directed  the  de- 
cree not  to  issue.  On  the  hearing  of  the  appeal,  the  plaintilF 
admitted  he  had  no  evidence,  and  the  decree  was  reversed. 
Held,  that  under  these  circumstances  the  judge  before  whom 
the  appeal  was  heard  had  power  to  order  the  replevin  bond 
to  be  assigned  to  the  defendant,  under  the  0  &  7  W.  4,  c.  75, 
ss.  13,  14.     Orr  v.  Lavenj.  2S0 

ti.  The  Attorney-General  is  not  liable  to  depositc  or  give  secu- 
rity for  costs  under  the  6  &,  7  W.  4,  c.  75,  s.  31,  upon  ap- 
pealing from  a  dismiss  of  a  civil  bill  brought  by  him  against 
a  Bridge  Contractor  on  Jiis  recognizance  under  the  0  &  7 
W.  4,  c.  110,  s.  108. — On  the  hearing  of  such  a  civil  bill  it 
lies  on  the  defendant  to  prove  that  the  bridge  was  built,  and 
not  on  the  Attorney-General  to  prove  that  it  was  not. — 
Semble,  that  the  amount  of  the  sum  to  be  decreed  in  such 
case  is  to  be  measured  by  the  amount  of  actual  damage  sus- 
tained.   Attorney-General  V.  Wilson.  313 

4.  Assistant  Barristers  have,  under  the  0  &  7  W.  4,  c.  75,  s. 
2,  jurisdiction  to  hear  and  determine  disputes  and  difl'ercnces 
respecting  the  possession  of  lands  held  from  year  to  year. 
Charters  v.  Gilroy.  319 

.'».  The  0th  section  of  the  0  &  7  W.  4,  c.  75,  prescribing  a 
notice  to  be  given  by  the  party  distraining  to  the  party  dis- 
trained, is  mandatory.     Murphy  v.  Butler.  320 


It  with  intent 
stanco  to  the 
I  that  no  alFi- 
A'itli  the  clerk 
Page  00 
ill  replevin  on 
tcndant  al'ter- 
itant  barrister 
3  tunc,  for  the 
rected  the  de- 
d,  the  plaintifV 
was  reversed. 

before  whom 

replevin  bond 

7  W.  4,  c.  75, 

280 

or  give  secu- 
.31,  upon  ap- 
ly  him  against 
dcr  the  6  vfe  7 
li  a  civil  bill  it 
was  built,  and 
it  was  not. — 
ccrecd  in  such 
d  damage  sus- 
313 
W.  4,  c.  75,  s. 
md  difl'erences 

year  to  year. 

319 

,  prescribing  a 

the  party  dis- 
3'JO 


TO    THE   PRINCIPAL    MATTERS. 


408 


CLERGYMAN. 

Sec  DiUiltAUEU  ClKROYMAN. 

CLEUK. 

See  EjinEzzr-EMKNT. 

CLERKS  OF  THE  CROWN. 

1.  Clerks  of  the  Crown  are  not  proliibiteU  by  statute  frorn 
taking  any  fees,  exfopt  tlioso  wliich  li.-ul  been  formerly  paid 
by  presentments,  and  are  now  commuted  for  salary.  ///  re 
Officers'  Fees.  Pair,..  '.V.i 

2.  Tlie  CIcik  of  the  Crown  is  not  of  right  entitled  to  the  fees 
of  2s.  2(1.  and  O.s.  8(/.  for  searches  in  the  ("rown  ollicc,  and 
copies  of  informations,  as  part  of  the  ex|)cnscs  of  prosecution 
under  a  Judge's  order,  unless  in  cases  where  the  cojiics  vvcro 
actually  furnished,  and  were  necessary.  41 

3.  The  Clerk  of  the  Crown  is  bound  to  produce  the  informa- 
tions in  his  oflicc  to  the  Court,  when  ordered,  without  any 
fee.  Ibid. 

4.  The  110th  section  of  the  0  &  7  Wm.  IV.  c.  110,  does  not 
authorize  a  presentment  to  the  Clerk  of  the  Crown  or  tlio 
under-SherilK  for  duties  performed  at  an  adjourned  assizes. 
Cavan  Presentment.  288 

CLERKS  OF  THE  PEACE. 

1.  Held  that  the  Grand  Jury  had  a  power  of  considering  what 
was  a  "necessary  disbursement"  by  the  Clerk  of  the  I'eace, 
under  the  10  G.  IV.  c.  8,  s.  37,  for  printing  election  notices, 
&.C.,  and  that  that  statute  was  not  mujidatory  on  them  to 
present  the  sum  actually  disbursed.  Tipperary  Present- 
ment. 101 

2.  A  presentment  to  the  Clerk  of  the  Peace  for  his  trouble  in 
registering  arms  under  the  47  G.  III.  c.  54,  (revived  by  10 
G.  IV.  c.  47)  hc/d  to  be  illegal,  by  force  of  the  4  G.  IV.  c. 
43,  s.  1.  (0  and  7  Wm.  IV.  c.  110,  s.  110.)  Monaglian  Pre- 
sentment.  Ill 

3.  Since  the  passing  of  the  0  and  7  Wm.  IV.  c.  110,  no  pre- 
sentments can  be  made  to  remunerate  clerks  of  the  peace 
for  providing  and  copying  jurors'  books,  and  preparing  pre- 


ll 


< 


H' 


ll 


:i :,' 


.1/1    ' 
i 


III 


111) 


INDEX 


Cf.ERKS  OF  THE  VFACD—amlimnil. 

rcpts  niid  reluriiH,  iiiidcr  ss.  r»  »Si  I)  of  the  Jurors'  Act,  !J  S:.  -l 
W.  IV.  c.  S>1.    Cai'un  t^  Fcnnaiuigk  Prcscnlmculs.    Pago  '4Ui 

COLLECTOR. 

{See  TuKAsuREti,  2.) 

CONFESSION. 

1.  Confession  admissible,  altlioiigh  apparently  induced  by  the 
acts  of  the  parties  who  concUictcd  the  prisoner  to  gaol ;  those 
acts  being  calculated  to  excite,  not  fear  of  temporal  punish- 
ment, but  liorror  at  the  recollection  of  the  crime.  Hex  v. 
Gihneij.  15 

2.  Parol  evidence  of  a  confession  held  to  be  admissible,  it  being 
proved  that  the  confession  was  not  taken  down  in  writing 
whilst  the  prisoner  was  before  the  magistrate ;  although  there 
was  no  proof  that  !  ''ad  not  been  put  into  writing  within 
two  days,  under  '0  Car.  1.  Sess.  2,  c.  18.  Rex  v. 
Kinsley.  07 

a.  The  prisoner  was  convicted  upon  n  confession  made  to  a 
person  who  cauti(jncd  him  not  to  say  any  thing  to  criminate 
himself;  but  this  conlession  was  merely  the  second  repetition 
of  a  former  confession  made  to  another  person  who  had  pre- 
viously said  to  the  prisoner,  "the  evidence  at  the  inquest  was 
so  clear  against  you,  that  there  can  be  no  doubt  you  are  the 
guilty  man."  Held,  that  the  conviction  was  right.  Rex  v. 
Bryan.  157 

CONSOLIDATED  FUND. 

1.  Held,  that  a  presentment  for  the  repayment  of  money  ad- 
vanced by  the  Lord  Lieutenant  out  of  the  consolidated  fund, 
under  the  58  G.  IIL  c.  47,  and  2  Wm.  IV.  c.  9,  to  the  Boards 
of  Health  established  in  ditlbrent  districts  of  a  county,  should 
be  raised  oil"  the  county  at  large,  and  not  off  the  respective 
districts.     Mayo  Presentment.  171 

2.  Held,  that  the  0  G.  IV.  c.  101,  s.  5,  and  the  1  and  2  Wm. 
IV.  c.  33,  s.  107,  as  to  presentments  by  Grand  Juries  of  sums 
equal  to  those  advanced  out  of  the  consolidated  fund,  for  the 


I^R^u 


TO   Tin:    PRINCIPAL    MATTERS. 


411 


'  Act,  :i  &  I 


Lliiccd  by  the 
(J  gaol;  those 
poral  piinish- 
•uuc.     Hex  V. 

15 
ssiblc,  it  being 
vn  in  writing 
ilthough  there 
.vriting  wiliiin 
18.    Hex  \. 

07 
ion  made  to  a 
g  to  criminate 
!ond  repetition 
I  who  had  pre- 
he  inquest  was 
bt  you  are  the 
riglit.    Rex  v. 

157 


of  money  ad- 
jsolidatcd  fund, 
,  to  tiie  Boards 

county,  should 
■  the  respective 
171 
!  1  and  2  Wm. 
I  Juries  of  sums 
cd  fund,  for  the 


CONSOTJDATliD  V\lK])—cnv>!nuc,l. 

repair  of  ritiids,  wore  inip.)rativo  upon  the  Craiid  Jury.    AVy.v- 
aniimoa  Presfiitimuts.  Page  Wi 

W.  The  Jiiilgo  may  make  an  order  for  the  repayment  of  advances 
out  of  the  consolidated  fund,  under  the  (i  CI.  IV.  c.  .'it,  s,  2, 
although  the  assizes  next  after  tiie  order  of  council  had  been 
passed  by.     Curhw  Prcsenlincnt.  Page  INH 

.See   TUKASUIIEU,   (JoVKllNMKNT   AuVANCES. 

CONTIIA  FORMAM  STATUTL 

Held,  that  it  was  no  valid  objection  that  an  indictment  for  ab- 
duction (under  the  11)  CJ.  2,  c.  l.'J,)  concluded  against  the  form 
of  the  "  statute"  instead  of  "  statutes."     Hex  v.  Browne,    iil 

CONTRACTOR. 
A  presentment  in  the  form  of  a  general  authority  to  the  trea- 
surer to  1,  .ike  advances  to  contractors  in  every  case  where 
the  sum  should  exceed  £20,  held  not  to  be  warranted  by  the 
.3  and  1  Wm.  IV.  c.  7S,  s.  41).  (0  and  7  Wm.  IV.  c.  IKt, 
s.  laH.)     Co.  WicMow  Presentmenl.  101 

See  Bill  no  Es,  Roaus. 

CONVICTION. 

On  the  trial  of  an  accessary  before  the  fact  to  a  felony,  the 
proper  evidence  of  the  conviction  of  the  principal  felon  at  a 
former  assizes  for  the  same  county,  is  a  record  of  the  con- 
viction, and  not  the  crown  book.  Rex  v.  Du:ycr,  198;  Regina 
Y.  Robinson.  280 

CORONER. 

1.  A  person  who  acts  as  a  coroner  merely  within  the  limits  of 
a  borough,  is  a  coroner  within  the  meaning  of  the  0  and  7 
Wm.  IV.  c.  110,  s.  97,  so  as  to  entitle  him  (o  a  presentment. 
The  maximum  presentable  for  each  Coronc,  under  the  0  and 
7  Wm.  IV.  c.  11(>,  s.  97,  is  £2  for  each  inquest,  even  al- 
though that  should  exceed  £30.    Cumin  Presentment.      211 

2.  The  maximum  presentable  for  all  the  Coroners  in  the  county 
of  Ca  van,  is  £90.  I  hid. 

3.  Where  £90  is  the  maximum  presentable  for  all  the  Coro- 


m 


*-'iii  •" 


If 


■i; 


4  'f 


il! 


413 


INDEX 


COnO^EU— continued. 

ners  of  a  county,  if  the  number  of  inq,iests  has  been  such 
that  a  payment  of  £2  for  each  inquest  would  make  a  sum 
exceeding  £'M)  hi  the  whole,  then  each  Coroner  is  to  abate 
according  to  his  number  of  inquests,  until  the  sum  is  reduced 
to  £90.  Page  211 

4.  Where  the  magistrates  at  sessions  left  blanks  in  some  of  the 
numbers  in  the  schedule  relating  to  presentments  for  coro- 
ners, on  account  of  doubts  which  they  felt  as  to  the  sums  to 
be  inserted ;  held,  that  it  was  competent  to  the  Grand  Jury 
to  fdl  up  these  blanks,  after  having  been  advised  by  the 
Judge,  notwithstanding  the  o  and  7  Wm.  IV.  c.  110, 
s.  47.  Jbld. 

5.  Quaere,  whether  the  maximum  presentable  for  all  the  Coro- 
ners of  a  county  is  to  be  regulated  by  the  number  of  Coro- 
ners allowed  by  schedule  S  of  the  G  and  7  Wm.  IV.  c.  116, 
or  by  the  actual  nuiiiltcr  of  Coroners,  where  the  number  is 
less  than  the  scliedule  of  the  Act  allows?  Ibid. 

C.  The  magistrates  and  cess-payers  at  presentment  sessions  have 
power  to  reduce  the  sum  ordered  by  a  Coroner  to  be  paid 
to  a  medical  witness,  under  the  6  and  7  Wm.  IV.  c.  116, 
s.  99;  and  the  Grand  Jury  have  no  power  to  increase  it 
afterwards,  so  as  to  make  it  conformable  to  the  Coroner's 
order.  The  Judge  at  the  assizes  must  fiat  the  presentment 
as  it  came  from  sessions.  Co.  Clare  Presentment.  247 

COUNSEL. 

See  Reserved  Casks. 

COUNTY. 

See  PuESENTMENT.    1.'?. 

COURT  HOUSE. 

1.  A  presentment  of  a  sum  for  additional  works  done  in  a  new 
Court  house,  not  included  in  the  original  contract,  is  illegal, 
under  the  H'S  G.  HI.  c.  131.     Caoan  Presentment.  45 

2.  A  traverse  does  not  lie  to  a  presentment  for  a  new  county 
Court  house,  duly  made  according  to  the  53  Geo.  III.  c.  131. 
Cork  Presentment.  \n 


s  been  such 
malie  a  sum 
r  is  to  abate 
111  is  reduced 
Page  211 
1  some  of  the 
Its  for  coro- 
1  the  sums  to 
Grand  Jury 
'ised  by  the 
IV.   c.   110, 

Ibid. 
all  the  Coro- 
ibcr  of  Coro- 
i.lV.  c.  110, 
ic  number  is 

Ibid. 
sessions  have 
r  to  be  paid 
1.  IV.  c.  110, 
3  increase  it 
:lie  Coroner's 
I  presentment 
nl.  247 


lone  m  a  new 
net,  is  illegal, 
'.nt.  45 

1  new  county 
30.  III.  c.  131. 
117 


TO  THE   PltlNCIPAL  MATTERS. 


413 


COWS. 

Cows  arc  not  chattels  within  the  meaning  of  the  9  Geo.  IV. 
c.  55,  ss.  40,  41,  42.     Rex  v.  Denenij.  Page  255 

CRIERS. 

1.  Criers  are  not  prohibited  by  statute  from  taking  any  fees, 
except  those  which  had  been  formerly  paid  by  presentment, 
and  are  now  commuted  for  salary.— ScliedLiJc  o''  fees  to 
which  the  crier  is  entitled.     Li  re  Officers'  fees.  33 

2.  The  fee  of  5*.  paid  by  the  party  traversing  to  the  Crier  upon 
the  trial  of  a  road  traverse  for  damages,  is  a  lawful  one,  and 
may  be  received  by  him,  notwithstanding  the  0  and  7  Wm. 
IV.  c.  lie,  s.  110.  But  it  is  not  to  be  included  in  the  verdict 
as  part  of  the  damages  sustained.  Fermanagh  Traverse,  222; 
Clare  Presentment.  272 

DEGRADED  CLERGYMAN. 

1.  An  exemplification  of  the  sentence  of  degradation  under  the 
episcopal  seal  is  not  necessary  evidence  to  support  an  in- 
dictment against  a  person  alleged  to  be  a  degraded  clergy. 
man,  for  celebrating  a  marriage  between  Protestants.     Rex 


V.  Stonase. 


121 


2.  On  the  trial  of  a  degraded  clergyman  for  celebrating  a  mar- 
riage between  a  Protestant  and  a  Roman  Catholic,  nn  entry, 
signed  by  the  Rcristrar  of  the  Consistorial  Court,  of  the  sen- 
tence of  degradation,  in  a  book,  wliich  contained  also  an 
entry  of  the  previous  proceedings,  is  sufficient  evidence  of 
the  degradation.     Rex  v.  Sandys.  iQG 

DEMANDING  WITH  INTENT  TO  STEAL. 

The  demand  of  a  gun  from  the  owner's  mother,  in  the  house 
of  the  owner,  where  his  mother  lived,  is  sufficient  to  support 
an  indictment  for  demanding  property  with  intent  to  steal, 
although  the  gun  was  not  in  the  house,  or  in  the  mother's 
possession,  at  the  time  of  the  demand.    Rex  v.  JWDennet.  148 

DESERTED  CHILDREN. 
Held,  that  under  the  11  &  12  Geo.  III.  c.  15,  and  13  is.  14  Goo. 
III.  c.  24,  there  could  be  only  one  order  for  a  sum  not  exceed- 
in.j  £5,  for  each  deserted  child.   Armagh  Presentment.    184 


414 


INDEX 


-  H 


i'  ^!l 


DESERTER. 

The  traverser  was  indicted  under  the  Mutiny  Act  of  1834,  for 
voluntarily  delivering  lumsclf  up  as  a  deserter,  and  was  aUo 
presented  as  a  vagrant.  Tiie  jury  found  against  the  traverser 
upon  the  indictment,  and  for  him  upon  the  presentment. 
Held,  that  no  judgment  could  be  pronounced  against  him, 
and  that  he  ought  to  be  discharged.     Rex  v.  JM'Clushj. 

Page  102 

DISPENSARIES. 

See  Medical  Charities. 

DRAFT. 

A  person  finding  a  draft  upon  a  banker,  and  tendering  it  for 
payment,  with  the  intention  of  converting  tlie  proceeds  to  his 
own  use,  knowing,  at  the  time,  that  he  is  not  the  person  en- 
titled to  receive  the  amount,  is  guilty  of  felony. — "  Draft  and 
order  for  payment  of  money,"  is  a  suflicient  description 
within  the  meaning  of  a  statute  which  makes  the  stealing  of 
a  warrant  for  payment  of  money,"  felony.   Rex  v.  Beard.   9 

DWELLING-HOUSE. 

An  indictment  for  burglary  in  a  gate  house,  stating  it  to  be  the 
dwelling-house  of  the  gate-hceper,  is  bad. 

An  indictment  under  the  Whiteboy  Act  for  an  injury  to  a  gate- 
house, stating  it  to  be  the  "  dwelling-house  and  habitation" 
of  the  gate-keeper,  is  sufficient.     Rex  v.  Cahill.  36 

ELECTION  NOTICES. 
See  Clerk  of  the  Peace,  1. 

EMBEZZLEMENT. 

The  prisoner  was  a  runner  of  the  bank  of  Ireland  till  six  o'clock 
every  day,  and  after  six  to  G.  and  W.,  public  notaries.  Be- 
fore six  o'clock  one  day  he  received  from  D.  money  to  pay 
bills  of  exchange,  which  had  been  discounted  by  the  bank, 
and  of  which,  owing  to  some  mistake,  payment  could  not  be 
received  at  the  bank.  The  prisoner  promised  to  pay  them 
at  the  olFice  of  G.  and  W.  The  same  evening,  after  six 
o'clock,  he  paid  a  part  only,  and  returned  to  B.  some  of  the 
bills,  as  if  they  had  been  paid,  keeping  the  rest  of  the  money 


TO   THE   PRINCIPAL   MATTERS. 


415 


of  1834,  for 

lul  was  aUo 
he  traverser 
Dresentment. 
against  him, 
■.  M'Clushj. 
Page  102 


dering  it  for 
occcds  to  his 
ic  person  en- 
-"  Draft  and 
t  description 
le  stealing  of 
;  V.  Beard.   9 


? 

g  it  to  be  the 

jry  to  a  gate- 

id  habitation" 

30 

till  six  o'clock 

4 

notaries.    Be- 

money  to  pay 

( 

by  the  bank, 

It  could  not  be 

1  to  pay  them 

ling,  after  six 

B.  some  of  the 

t  of  the  money 

EMBEZZLEMENT— con//H7/erf. 

and  hills.    Held,  that  the  bills  and  money  were  received  by 

'     the  prisoner  as  the  servant  and  clerk  of  G.  and  W.,  and  that 

therefore  a  conviction  for  embezzlement  in  that  character 

under  the  statute  was  good.     Rev  v.  Gourlay.  Page  83 

ESCAPE. 

Where  a  prisoner  was  convicted  upon  an  indictment  under  the 
51  Geo.  III.  c.  03,  s.  o,  for  an  escape  from  prison,  the  former 
conviction  (which  was  proved  by  a  certificate  from  the 
crown  office,)  having  been  under  the  1  Vic.  c.  87,  ss.  0  &,  10, 
and  the  sentence  six  months'  imprisonment:  Held,  that  the' 
conviction  was  bad,  as  the  escape  did  not  come  within  the 
51  Geo.  III.  c.  03.     Rcgina  v.  Meamj.  240 

EVIDENCE. 

1.  A  man  jointly  indicted  with  others,  and  who  has  pleaded  not 
guilty,  cannot  be  a  witness  for  the  prosecution,  whilst  his 
plea  stands.     Rex  v.  Ryan.  5 

2.  The  prosecutor's  wife  is  a  competent  witness  for  the  defence. 
Rex  V.  Houlton.  24 

3.  It  is  no  objection  to  the  testimony  of  a  wife  that  she  is 
brought  to  contradict  the  testimony  of  her  husband.       Ibid. 

4.  Where  husband  and  wife  are  both  concerned  in  a  highway 
robbery,  the  presence  of  the  husband  is  only  presumptive  evi- 
dence of  coercion  exercised  by  him  over  the  wife.  Rex  v. 
Stiiplelon.  03 

5.  The  passing  of  a  presentment  is  prim^  facie  evidence  of  the 
legality  of  proceedings  under  the  59  Geo.  III.  c.  84,  on  the 
part  of  a  person  who  has  obtained  a  road  presentment. 
Queen's  County  Presentment.  ^q 

0.  The  receiver  of  a  stolen  promissory  note  was  indicted  for  a 
substantive  felony  under  the  9  Geo.  IV.  c.  55,  s.  47;  and  a 
witness  for  the  crown  proved  that  he  (witness,)  had  stolen 
the  note;  but  it  appeared  on  his  cross-examination  that  he 
had  been  tried  for  the  larceny  and  acquitted,  a  fact  of  which 
the  Judge  liad  judicial  knowledge.  Held,  that  the  acquittal 
of  the  principal  was  not  conclusive  evidence  of  his  innocence, 


416 


INDEX 


S  iH 


ii'  : 


E  VlDENCE—covtimied. 

but  that  the  Judge  was  right  in  leaving  to  the  jury  the  fact 
of  the  acquittal,  together  with  the  witness's  averment  of  tlie 
tlicft.     Rex  V.  M'Cue.  Page  V20 

7.  An  exemplification  of  the  sentence  of  degradation  under  the 
episcopal  seal  is  not  necessary  evidence  to  support  an  indict- 
ment against  a  person  alleged  to  be  a  degraded  clergyman, 
for  celebrating  a  inarriage  between  Protestants.  Rex  v. 
Stonage.  121 

8.  On  the  trial  of  a  degraded  clergyman  for  celebrating  a  mar- 
riage between  a  Protestant  and  a  Roman  Catholic,  an  entry 
signed  by  the  registrar  of  the  Consistorial  Court,  of  the  sen- 
tence of  degradation,  in  a  book,  which  contained  also  an 
enlry  of  the  previous  proceedings,  is  sufficient  evidence  of 
the  degradation.     Rex  v.  SanJi/s.  1G6 

9.  Where  a  witness,  after  having  been  exainined  for  the  prose- 
cution, fainted  shortly  after  the  commencement  of  his  cross- 
examination,  so  as  to  render  it  impossible  for  liim  to  give 
any  further  evidence:  Held,  by  seven  Judges  against  five, 
that  a  conviction  upon  such  evidence  as  had  been  already 
given  by  this  witness,  taken  together  with  the  evidence  of 


other  witnesses,  was  good.     Rex  v.  Doolin. 


123 


10.  The  demand  of  a  gun  from  the  owner's  mother,  in  the 
liouse  of  the  owner,  where  his  mother  lived,  is  sufficient  to 
support  an  indictment  for  demanding  property  with  intent  to 
steal,  although  the  gun  was  not  in  the  house,  or  in  the 
mother's  possession  at  the  time  of  the  demand.  Rex  v. 
JWBennet.  148 

11.  An  indictment  for  sending  to  the  Lord  Lieutenant  a  false 
recommendation  of  persons  convicted,  charged  that  the  pri- 
soner forged  the  signature  of  "T.  King,  rcct6r  of  T.;"  the 
evidence  was,  that  the  name  forged  by  the  prisoner  was 
"  T.  Knox,  rector  of  T."  The  Judge  having  given  leave  to 
amend,  by  substituting  "Knox"  for  "King:"  Held,  that  there 
was  no  fatal  variance  on  the  ground  of  its  appearing  in  evi- 
dence that  T.  Knox  was  in  fact  rector  of  A.  and  that  there 
was  no  such  parish  as  that  of  T.    Held  also,  that  proof  of 


^W^WfT 


TO   THE   PRINCIPAL   MATTERS. 


417 


jry  the  fact 
ment  of  the 

Page  120 
n  under  the 
rt  an  indict- 
clcrgyman, 
its.     Rex  V. 
121 
ating  a  mar- 
lie,  an  entry 
:,  of  the  scn- 
ined  also  an 

evidence  of 
166 
for  the  prose- 
of  his  cross- 
hini  to  give 
against  five, 
been  already 
;  evidence  of 
123 
lother,  in  the 
is  sufficient  to 
with  intent  to 
sc,  or  in  the 
land.      Rex  v. 
148 
utenant  a  false 
:d  that  the  pri- 
tbrofT.;"  the 

prisoner  was 
(riven  leave  to 
lold,  that  there 
Hicariiig  in  evi- 
and  that  there 
,  that  proof  of 


. 


EVIDENCE— con^mMci. 

the  document  which  contained  the  false  recommendation 
being  in  the  prisoner's  handwriting,  and  dated  in  the  county 
in  which  the  venue  was  laid,  was  sufficient  evidence  of  acts 
done  in  that  county.     Rex  v.  Dinjer.  Page  198 

12.  To  prove  a  conviction  which  took  place  at  a  former  assizes, 
the  record  thereof,  and  not  the  crown  book,  is  the  best  evi- 
dence, /i/^. 

13.  On  the  trial  of  an  accessary  before  the  fact  to  a  felony,  the 
proper  evidence  of  the  conviction  of  the  principal  felon  at  a 
former  assizes  for  the  same  county,  is  a  record  of  the  con- 
viction, and  not  the  crown  book.     Regina  v.  Robinson.    286 

See  Accomplice,  Bigamy,  Civii,  Bill,  Confession,  Forgery, 
Handwriting,  Manslaughter,  Perjury,  Poisoning,  Shoot- 
ing AT,  Unlawful  Oaths,  Whiteboy. 

EXCISE. 

The  Grand  Jury  having  rejected  a  presentment  for  the  repay- 
ment of  the  Collector  of  Excise,  under  the  7  Geo.  IV.  c.  74, 
-  s.  .50,  and  the  Judge  at  the  same  assizes  having  omitted  to 
add  the  amount  to  the  Treasurer's  warrant,  under  s.  132  of 
the  same  Act:  Held,  that  the  Judge  at  the  assizes  next  but 
one  after  had  author-ty  to  order  it  to  be  so  added.  Galwaij 
PrestnlmenU  160 

FAC  SIMILE. 

Held,  that  a  prisoner  might  be  convicted  of  utterinfr  a  forfred 
instrument,  although  the  instrument  when  given  in  evidence 
was  so  mutilated  that  it  could  not  be  decyphered  without  the 
aid  of  a  fac  simile.    Rex  v.  Woods.  115 

FEES. 
See  Burning,  3,  Clerks  of  the  Crown,  Criers,  Traverse,  3. 

FELONY. 

1.  A  person  finding  a  draft  upon  a  banker,  and  tendering  it 
for  payment,  with  the  intention  of  converting  the  proceeds 
to  his  own  use,  knowing,  at  the  time,  that  he  is  not  the  per- 
son entitled  to  receive  the  amount,  is  guilty  of  felony. 

63 


\ 


41U 


INDEX 


I 


I   ;:,i! 


i 


If 


M  ..^^ 


b 


a     ' 

l\ 


lis  ■  -3 


FELONY— contlntted. 

"Draft  and  (mier  for  payment  of  money"  is  a  sufficient  des- 
cription witiiin  the  meaning  of  a  statute  ^vllicll  makes  the 
stealing  of  a  warrant  for  payment  of  money,  felony.  Hex  v. 
Beard.  Page  9 

2.  The  27  Geo.  III.  c.  15,  s.  10,  so  far  as  it  rehites  to  the  tail- 
ing of  arms,  without  the  consent  of  the  owner,  is  repealed 
by  the  1  and  2  VVm.  IV.  c.  44,  s.  2,  and  thcreiore  an  indict- 
ment for  such  an  oflencc,  as  for  a  felony,  cannot  be  supported. 
Rex  V.  Maguire.  132 

FORGERY. 

1.  An  indictment  for  having  in  possession  a  forged  note  of  the 
Royal  Bank  of  Scotland,  with  intent  to  utter  it,  cannot  bo 
supported  at  common  law.     Rex  v.  Fulton.  48 

2.  The  prisoner  was  convicted  on  an  indictment  for  having  in 
his  possession  a  forged  note  of  the  Bank  of  Ireland.  The 
first  count  set  out  the  note,  with  the  name  of  a  signing  clerk 
annexed ;  the  second  set  it  out,  as  if  the  name  of  the  signing 
clerk  had  been  obliterated.  The  note,  when  produced,  agreed 
with  that  set  out  in  the  second  count ;  but  no  evidence  was 
given  as  to  the  obliteration.  Held,  that  the  conviction  was 
bad.     Rex  v.  Getty.  59 

3.  Where  the  prisoner  was  present  at  a  sale  of  goods  by  the 
prosecutor  to  a  third  person,  (who  was  introduced  by  the 
prisoner  to  the  prosecutor,  as  a  purchaser,)  and  took  up  a 
bank  note  given  by  that  person  in  payment,  saying  that  it 
was  good,  and  that  he  would  make  it  good ;  and  desired  the 
prosecutor  to  write  his  (prisoner's)  name  upon  it ;  the  note 
proving  a  forgery,  held,  that  there  was  sulficient  evidence  of 
uttering  by  the  prisoner.     Rex  v.  Cushlan.  113 

4.  Held  that  a  prisoner  might  be  convicted  of  uttering  a  forged 
instrument,  although  the  instrument,  when  given  in  evidence, 
was  so  mutilated,  that  it  could  not  be  decyphered  without 
the  aid  of  afac  simile.     Rex  v.  Woods.  115 

5.  Conviction  for  forgery.  The  indictment  stated  that  the  pri- 
soner falsely  altered  a  receipt  for  rent,  which,  previously  to 


I 


»m».-™ii 


■"Tli 


TO   THE    PRINCIPAL    MATTERS. 


419 


[licicnt  dcs- 

makcs  tlic 

ly.     Rex  V. 

Pogc  9 

to  the  tak- 

is  repealed 

c  an  indict- 

3  supported. 

132 


note  of  the 
t,  cannot  be 

48 
K  having  in 
ila7id.  The 
igning  clerk 
'  the  signing 
jced,  agreed 
i^idence  was 
iviclion  was 

59 
oods  by  the 
uced  by  the 
d  took  up  a 
lying  that  it 
1  desired  the 
1  it ;  the  note 
;  evidence  of 

113 
rinij  a  forged 
1  in  evidence, 
3red  without 

115 

that  the  pri- 

previously  to 


FORGERY —conlhiued 

such  alteration,  was  as  follows: — "Ennis,  3d  April,  1837, 
Received  from  J.  and  J.  G.,  £7  7s.  Id.  on  account  of  rent," 
&c.  "as  at  foot. — P.  Curtin.  Dec.  3d,  cash  per  J.  G.,  £3  its. 
Cash  this  day,  per  do.  £4  Is.  7fZ.;  total,  £7  7s.  7d."  Th.e 
alteration  was  ctlected  by  erasing  the  lines  following  the 
words  "  P.  Curtin."  The  indictment  did  not  state  any  further 
circumstances,  showing  that  such  an  erasure  constituted  a 
forgery ;  but  it  appeared  in  evidence  that  two  separate  re- 
ceipts had  been  previously  given  for  the  two  sums  mentioned 
in  the  erased  lines,  and  that  tlie  prisoner's  object  was  to  get 
credit  fin-  the  other  sum  as  a  separate  payment.  Held,  that 
the  conviction  was  right. 

Sen:ble,  that  reading  out  a  document,  although  the  party 
refuses  to  show  it,  is  a  sufficient  uttering.    Regina  v.  Green. 

Page  283 

FOUNDLING. 

See  Deserted  Chfldren. 

GAOL. 

1.  The  Judge  of  Assize  has  a  discretion  to  withhold  his  appro- 
bation to  the  appointment  by  the  Grand  Jury  of  a  new 
Inspector  of  a  county  gaol,  under  the  7  Geo.  IV.  c.  74. 
Cavan  Presentment.  95 

2.  Where  the  magistrates  and  cess-payers  at  a  special  sessions 
under  the  3  &  4  Wm.  I  7.  c.  78,  had  reduced  the  gaoler's 
salary  from  its  former  amount;  Held,  that  the  Grand  Jury 
at  the  assizes  following  had  power  under  the  7  Geo.  IV.  c. 
74,  s.  04,  (notwithstanding  the  3  &  4  Wm.  IV.  c.  78,  s.  (5!),) 
to  present  for  the  full  amount  of  the  former  salary.  Drogkeda 
Presentment.  194 

See  Medical  Officers,  1. 

GATE  HOUSE. 

See  Burglary,  Whiteboy. 

GOVERNMENT  ADVANCES. 

An  application  having  been  made,  by  direction  of  the  Lord 


430 


INDEX 


GOVERNMENT  ADVANCES— continued. 

Lieutenant,  to  a  Grand  Jury,  to  present  the  amount  of  arrears 
due  to  government  1»  years  before,  for  advances  made  by 
government  for  a  board  of  liealth,  and  the  Grand  Jury  hav- 
ing' refused  on  account  of  the  length  of  time  which  had 
elapsed;  Held  that  the  Judge  of  Assize  was  authorized  to 
make  an  order  for  the  amount,  under  s.  179  of  the  6  and  7 
\Vm.  IV.  c.  116.     Queen's  Countj/ Presentment.     Page  235 

GRAND  JURY. 

See  Presentment. 

HANDWRITING. 

1.  To  negative  hanawriting,  it  is  sufficient  evidence  if  the  sup- 
posed writer  can  state  his  positive  knowledge, /rom  circum- 
stances, that  the  writing  cannot  be  his,  although  he  also  states 
that  he  canno'.,  even  upon  his  belief,  on  a  mere  inspection  of 
the  writing,  say  whether  it  is  his  or  not.     Rex  v.  Walsh.    38 

2.  Evidence  of  the  prisoner's  handwriting  by  a  witness  who 
had  never  seen  him  write,  but  who  swore  he  was  enabled 
to  form  a  belief  from  opportunities  which  he  hfid  had  of 
knowing  his  handwriting,  independently  of  comparison ; 
Held  sufficient,  without  any  other  evidence  that  the  prisoner 
knew  how  to  write.    Rex  v.  Mara.  75 

HARD  LABOUR. 
See  Sentence,  1. 

HUSBAND  AND  WIFE. 

1.  The  prosecutor's  wife  is  a  competent  witness  for  the  defence. 
It  is  no  objection  to  the  testimony  of  a  wife  that  she  is  brought 
to  contradict  the  testimony  of  her  husband.  Rex  v.  Houl- 
ton.  24 

2.  Where  husband  and  wife  are  both  concerned  in  a  highway 
robbery,  the  presence  of  the  husband  at  the  commission  of 
the  offence,  is  only  presumptive  evidence  of  coercion  exer- 
cised by  him  over  the  wife.  Semble,  that  in  a  case  of  high- 
way robbery,  coercion  by  the  husband  is  not  a  defence  for 
the  wife.    Rex  v.  Stapleton.  93 


of  arrears 
I  made  by 

Jury  liav- 
which  had 
thorized  to 
he  6  and  7 

Page  235 


I  if  the  sup- 
om  circum- 
}  also  slates 
ispection  of 
Walsh.  38 
atness  who 
^as  enabled 
lad  had  of 
omparison ; 
.he  prisoner 
75 


the  defence, 
le  is  brought 
?ex  V.  Haul- 
24 
1  a  highway 
mnfiission  of 
jrcion  exer- 
ase  of  high- 
defence  for 


TO   THE    PRINCIPAL   MATTERS. 


481 


INDICTMENT. 

1.  An  imiiclmcnt  under  the  27  Geo.  HI.  c.  1.5,8.  10,  will  bo 
suslaiiiod  by  evidence  of  supplying  aninumitidn  to  a  person 
who  only  pretended  to  get  it  for  the  use  of  the  Whiteboys. 
Ri'x  V.  IlcJ'ernan.  Pair'e  2 

2.  Indictment  for  inciting  persons  not  to  enter  into  the  employ- 
ment ot  H.  S.  The  evidence  showed  that  those  persons  had 
entered  into  the  employment  of,  and  worked  for  II.  S.  The 
prisoners  being  convicted,  two  questions  were  reserved — 
first,  whether  the  oilence  charged  was  an  offence  at  common 
law;  and  secondly,  if  it  were,  whether  the  evidence  supported 
the  indictment.  Held,  that  the  indictment  was  bad,  and  the 
conviction  wrong.     Rex  v.  Peltit.  151 

8.  An  indictment  charging  that  the  prisoner  did,  by  threats  and 
menaces,  threaten  violence  to  the  person  of  one  J.  G.,  in  the 
event  of  his  not  taking  back  into  his  employment  a  certain 
man  whom  he  had  then  lately  before  discharged  from  his 
service,  is  bad.     Rex  v.  Plannery.  243 

And  see  the  different  heads. 

INFIRMARY.  ' 

See  Medical  Officers,  3,  4,  5,  Medical  Charities. 

INSPECTOR. 
See  Gaol. 

JUDGMENT. 

See  Sentence, 

JURY. 

1.  A  juror  having  been  by  mistake  entered  upon  the  panel, 
and  called  and  sw^rn  by  a  wrong  name,  and  an  objection 
having  been  taken  before  verdict;  held,  thpt  there  was  a 
mistrial.     Rex  v.  Deleany.  gg 

2.  Where  on  a  trial  at  a  special  commission,  the  jury  could  not 
agree,  and  after  remaining  a  long  time  shut  up,  were  dis- 
charged by  the  court,  (no  consent  being  given  by  the  counsel 
on  either  side,)  in  consequence  of  the  physician's  report  that 
a  longer  confinement  would  endanger  the  lives  of  some  of 


INDEX 


■  VJ 


JURY — con  finned. 

lliiMii ;  Hc/d,  that  llioy  woro  properly  so  (lisclirircjcd,  niul  that 
tlio  prisoners  woro  Iriahlc  again;  and  tliat  tliuy  niiulit,  liavu 
been  tried  at  the  same  conmiission  if  the  Judge  had  thought 
proper.     Jir.r  v.  Jhirrclt.  I'n^e  lOJI 

3.  Where  the  Judge  took  it  upon  himself  to  discharge  the  jury, 
in  cnnse{|uence  of  a  statement  upon  oath  hy  one  of  the  jurors, 
(without  the  examination  of  a  me(li(;al  man,)  that  his  life 
would  be  endangered  by  a  longer  eonllnement,  and  to  remand 
the  prisoner;  Jleld,  that  the  Judge  had  acted  rightly,  and 
that  the  prisoner  was  not  entitled  to  bo  discharged.  Rex  v. 
Dchtiuj  ^'  C/iccvers.  100 

4.  The  prisoner  peremptorily  challenged  one  of  the  jury  on  his 
coming  to  the  book ;  the  Court  refused  to  receive  the  chal- 
lenge, and  the  juryman  was  sworn.  When  judgment  was 
about  to  be  pronounced,  the  prisoner's  counsel  tendered  a 
plea,  praying  a  reverse  of  the  judgment,  because  of  the  chal- 
lenge not  having  been  allowed,  vvhich  plea  the  Court  refused 
to  receive.  Held,  that  the  Court  was  right  in  refusing  to 
receive  it.     Ilex  v.  Mams  and  Langlon.  13.5 

6.  Since  the  passing  cf  the  0  and  7  Wm.  IV.  c.  11(5,  no  pre- 
sentments can  be  made  to  remunerate  clerks  of  the  peace 
for  providing  and  copying  jurors'  books,  and  preparing  i)rc- 
ce|)ts  and  returns  under  ss.  5  &  !)  of  the  Jurors'  Act,  3  &  4 
Wm.  IV.  c.  91.    Cavan  Presentment.  210 

C.  After  the  prisoner  had  been  given  in  charge,  it  appeared  that 
the  prosecutrix,  a  child  of  four  years  of  age,  did  not  sulFi- 
ciently  understand  thr  .laturcof  an  oath;  and  it  was  admitted 
on  the  part  of  the  crown,  that  there  was  no  other  evidence 
to  sustain  the  case.  Held,  that  the  prisoner  was  entitled  to 
an  acquittal.     Rcgina  v.  Oulughan.  270 


I 


LARCENY. 

1.  A  person  entrusted  to  drive  a  number  of  sheep  a  certain 
distance,  and  on  the  way  separating  one  of  them  from  the 
rest,  with  the  intention  of  fraudulently  converting  it  to  his 
own  use,  is  not  guilty  of  larceny.     In  such  a  case  the  animus 


ir  H 


TO   THE    PRINCIPAL    MATTERS. 


493 


I,  and  that 
night  liavo 
nd  thought 
Pa  ire  lOU 
re  thi;  jury, 
'  the  jurors, 
liat  his  nib 
1  to  remand 
rightly,  and 

cd.     'R(--i-  v. 
100 

!  jury  on  his 
ive  the  chal- 
dgmcnt  was 
1  tendered  a 
I  of  the  chal- 
Jourt  refused 
n  refusing  to 
135 
lU),  no  pve- 
of  the  peace 
ircparing  pro- 
s' Act,  3  &  4 
210 
appeared  that 
did  not  sulH- 
was  admitted 
Mhcr  evidence 
kvas  entitled  to 
270 


hccp  a  certain 
them  from  the 
sorting  it  to  his 
case  the  animus 


LARCENY— cnvtinnc.fl 

J'nmnili  upon  the  original  taking  should  ])o  loft  to  tlio  jury. 
Rex  V.  llrilhj.  Pii<<;c  ijl 

2.  The  prisoner  was  convicted  on  an  indictment  purporting  to 
be  for  highway  rohliery,  hut  omitting  the  words  as  lo  hiln'itg 
from  the  person  of  the  prosecdtor.     Ihld,  that  this  was  a  had 
conviction  fur  highway  rubbery,  but  good  fur  larceny.    Rcr, 
V.  Rogun.  02 

LETTERS. 

hi  an  indictment  for  robbing  a  mail  of  a  bag  of  letters,  it  is  not 
necessary  to  state  an  asportation,  but  it  is  sullicient  to  use 
the  words  of  the  statute.     Rex  v.  Rossilcr.  60 

LUNATIC  ASYLUM. 

See  Medical  Charities,  4. 

MALICE. 

The  prisoner  was  convicted  upon  two  indictments,  one  for 
shooting  at  A.  with  intent  to  kill  him,  and  the  other  for  shoot- 
ing at  B.  with  intent  to  kill  him;  the  jury  finding  that  ho 
intended  to  kill  wliicliever  the  shot  should  strike,  but  not  both. 
Held,  that  lie  was  rightly  convicted.     Rex  v.  Larldn.        GO 

MALICIOUS  INJURIES. 

Held,  by  six  Judges  against  five,  that  s.  70  of  the  3  &  4  Wm. 
IV.  c.  78,  repealed  all  former  laws  on  the  sui)ject  of  mali- 
cious injuries  to  property,  and  that  therefore  the  malicious 
burning  of  a  pew  in  a  Roman  Catholic  clia[)el,  while  tho 
country  was  in  a  state  of  distiu-bance  merely  arising  from  an 
election,  was  a  proper  subject  for  compensation,  though  not 
an  injury  under  the  Wliiteboy  Act,  and  that  the  notices  and 
examinations  required  by  tho  former  laws  were  no  longer 
necessary.     Carlow  Presentment.  180 

See  Burn  IMG. 

MANOR  COiniT. 

Held,  that  a  seneschal  of  a  Manor  Court,  within  the  jurisdiction 
of  which  there  was  no  local  prison,  was  not  liable  under  the 


INDEX 

MANOR  COVUT— continued. 

7  Gen.  IV.  c.  71,  s.  OS),  to  pny  for  iho  siipjinrt  of  prisoners  in 
the  cnmily  ;;!iol,  iiiidcr  cxcciiliitii  rntiii  tlio  Manor  (Nmrt ;  llio 
sciius»;liiil  not  bciii^  nhlu  to  refuse  exuciilioii'i,  nor  paid  by 
fees  upon  llicm,  nor  allowed  to  direct  the  process  to  any  one 
except  the  perinaiient  buililfs,  who  were  so  jjaid.  Co.  Antrim 
Prescnlincnt.  Page  239 

MANSLALICIIITER. 

1.  A  conviction  for  manslaughter  is  sustainable,  although  there 
has  been  no  coroner's  imiucst,  or  examination  of  the  body, 
or  evitlenco  of  medical  witnesses,  ns  to  the  cause  of  death, 
it  being  sutficicnt  if  the  cause  of  death  bo  proved  by  circum- 
stantial evidence.     Rex  v,  Dvgherty.  00 

2.  Shooting  a  sheriff's  bailiff  who  attempts  to  arrest  under  a 
warrant  regular  on  the  face  of  it,  but  dated  prior  to  the  writ 
on  which  it  is  founded,  held  to  be  manslaughter  only.  Rex 
V.  Deleavy.  88 

MARRIAGE. 
See  Bigamy,  Degraded  Clergyman. 

MEDICAL  CHARITIES. 

1.  Where  a  dispensary  has  been  established,  and  all  the  requi- 
sites prescribed  by  section  81  of  the  6  &  7  VVm.  IV.  c.  110, 
performed,  it  is  obligatory  on  the  Grand  Jury  to  make  the 
presentment  required  by  that  section,  and  they  cannot  refuse 
to  make  it  on  the  ground  that  they  consider  it  unnecessary. 
Kerry  Presentment.  277 

2.  In  the  case  of  fever  hospitals,  the  Grand  Jury  have  a  discre- 
tion to  present  less  than  the  amount  of  private  subscriptions, 
under  s.  81  of  the  0  «k  7  Wm.  IV.  c.  110.  Quaere,  whether 
they  have  any  such  discretion  in  the  case  of  dispensaries 
under  that  Act?  Ihid. 

3.  Held,  that  they  had  such  a  power  under  the  58  Geo.  III.  c. 
47.     Queen's  County  Presentment.  130 

4.  A  presentment  at  a  summer  assizes,  for  a  lunatic  asylum 
depot,  not  connected  with  any  house  of  industry,  is  bad,  under 


TO   THE    rUINCIPAL    MATTERS. 


485 


inoncrs  in 
;()iirt ;  tho 
)!•  paid  by 
to  any  oiio 
Co.  J  lit  rim 
Puge  a30 

oiigh  there 
"  tlio  body, 
;e  of  death, 
by  circurn- 

00 
3st  under  a 
•  to  the  writ 
only.     /?ea; 

88 


all  the  requi- 
I.  IV.  c.  116, 
to  make  the 
;annot  refuse 
unnecessary. 
277 
lave  a  discre- 
siibscriptlons, 
icerc,  whether 
dispensaries 
Ibid. 

)8  Geo.  III.  c. 
130 

matic  asylum 
,  is  bad,  under 


MEDK^AT.  CU\ll\T]EH-contirnicfl. 

s.  81)  of  the  (J  and  7  Wm.  IV.  c.  110.     R'ari/  Preseiiti/init. 

Ptige  5i77 
MEDirAI.  OFFIC.nilS. 

1.  Where  there  was  but  one  medical  officer  to  a  county  ganl, 
the  (irand  Jm'y  were  bound  to  present  for  him  the  eiitiro 
sum  mL'utiniiod  in  tho  schedule  to  the  4  Ceo.  IV.  c.  43. 
IVidilow  Prcscnlmcut.  I'd 

2.  A  medical  olliccr  cannot  be  lawfully  appointed  by  a  county 
CJrand  Jury  for  a  bridewell.  The  amount  f)f  a  bill  for  medi- 
cines for  prisoners  in  a  bridewell  may  be  presented,  if  for- 
nishcd  by  the  apothecary  of  tho  county  giol,  but  not  other- 
wise.    IVicUow  Prcscnlmcut.  44 

3.  A  f)rescntmcnt  of  a  salary  to  a  surgeon  for  attending  a  gaol 
under  the  7  G.  IV.  c.  74,  s.  Tii,  in  addition  to  his  salary  under 
the  5  G.  III.  c.  20,  and  54  Geo.  III.  c.  02,  (Infirmary  Acts,) 
held  to  bo  illegal.     Cavan  Presentment.  80 

4.  Held,  by  six  Judges  against  five,  that  the  0  and  7  Wm.  IV. 
c.  110,  s.  80,  does  not  render  it  imperative  upon  tlio  Grand 
Jury  to  make  a  presentment  for  the  surgeon  of  the  infirmary 
who  tenders  his  services  to  the  prisoners  in  the  gaol,  where 
there  has  been  a  surgeon  previously  appointed  for  the  gaol 
by  the  Grand  Jury,  and  paid  by  presentment.  Munugliaii 
Presentment.  217 

5.  A  presentment  of  £300  a-year  for  two  surgeons  of  a  county 
infirmary,  out  of  the  funds  of  the  institution,  (which  funds 
consisted  of  money  supplied  by  presentment,  of  public  money 
under  the  5  Geo.  III.  c.  20,  and  of  subscriptions,)  held  illegal. 
Clare  Presentment.  874 

MEDICAL  WITNESS. 

The  Magistrates  and  cess-payers  at  presentment  sessions  have 
power  to  reduce  the  sum  ordered  by  a  coroner  to  be  paid  to 
a  medical  witness,  under  the  6  &  7  Wm.  IV.  c.  110,  s.  99; 
and  the  Grand  Jiny  have  no  power  to  increase  it  afterwards, 
so  as  to  make  it  conformable  to  the  coroner's  order.  The 
Judge  at  the  assizes  must  fiat  the  presentment  as  it  came 
from  sessions.     Co,  Clare  Presentment.  347 

54 


42C 


INDEX 


-f?  '^i 


MISTRIAL. 

A  juror  having  been  by  mistake  entered  upon  the  panel,  and 
called  and  sworn  by  a  wrong  name,  and  an  objection  having 
been  taken  before  verdict:  held,  that  there  was  a  mistrial. 
Hex  V.  Dekanij.  Page  88 

MURDER. 

1.  An  indictment  against  a  woman  for  the  murder  of  her  child, 
not  stating  that  the  child  was  born  alive,  but  stating  that  it 
was  exposed  by  the  prisoner,  and  in  consequence  "languished, 
and  languishing  did  live  for  half  an  hour,  and  then  died," 
and  "that  so  the  prisoner  did  kill  and  murder  the  child  in 
manner  aluresaid,"  is  good.  Semhle,  that  an  indictment  for 
the  murder  of  a  "certain  male  child,"  without  further  des- 
cription, is  insufllcient.     Regina  v.  Kel/i/.  299 

2.  Where  the  Judge  omitted,  in  pronouncing  sentence  on  a 
conviction  for  murder,  to  order  that  the  bodies  of  the  pri- 
soners should  be  buried  within  the  precincts  of  the  gaol,  as 
directed  by  the  4  and  5  Wm.  IV.  c.  2G,  s.  2;  but  on  a  sub- 
sequent day,  on  ruling  the  book  at  the  close  of  the  same 
assizes,  in  the  absence  of  the  prisoners,  ordered  the  clause 
in  question  to  be  inserted;  held,  that  the  sentence  was  illegal, 
notwithstanding  the  6  and  7  Wm.  IV.  c.  30,  s.  2.  Regina 
V.  Hartnell  <!^  Casey.  302 

3.  The  prisoner  was  indicted  for  soliciting  J.  B.  to  murder  C. 
M.  The  evidence  was,  that  the  prisoner  procured  salt  petre, 
and  gave  it  to  J.  B.  to  be  administered  to  C.  M.  and  that  J. 
B.  administered  it  accordingly,  and  that  C.  M.  detected  the 
poison  in  time  to  save  her  life,  after  having  swallowed  some 
of  it.  The  jury  found  the  prisoner  guilty,  and  stated  their 
opinion  to  be,  that  the  solicitation  was  to  administer  salt 
petre,  with  intent  to  poison,  and  that  the  salt  petre  had  been 
attempted  to  be  administered.  Held,  that  the  conviction 
was  good,  the  prisoner  having  been  rightly  indicted  as  a 
principal,  for  soliciting  to  murder,  instead  of  as  an  accessary 
before  the  feet  to  the  administering  of  poison  with  intent  to 
murder;  and  the  10  Geo.  IV.  c.  34,  s.  9,  not  having  been 
repealed  by  the  1  Vic.  <'.  85,  s.  3.    Regina  v.  Murphy.    315 


panel,  and 
on  having 
a  mistrial. 

Page  88     ' 

■  her  child, 
ting  that  it 
anguished, 
ihcn  died," 
he  child  in 
[^tnient  for 
Kthcr  des- 
299 
enco  on  a 
of  the  pri- 
ho  gaol,  as 
t  on  a  sLib- 
r  the  same 

the  clause 
was  illegal, 
2.  Rcgina 
302 
I  murder  C. 
1  salt  petre, 

and  that  J. 
letected  the 
lowed  sotno 
stated  their 
ninister  salt 
re  had  been 

conviction 
idicted  as  a 
n  accessary 
ith  intent  to 
having  been 
urphy.    315 


vm 


■KkU  lKj£l^'j£ElllK.;£ili(UA-£ll 


j: 


TO   THE   PRINCIPAL   MATTERS. 


497 


MUTINY  ACT. 

See  Deserter. 

NOTICE. 

See  Traverse,  2,  4. 

NUNC  PRO  TUNC. 

A  presentment  cannot  be  made  after  the  assizes  nunc  jro  Hu.i.., 
where  the  Grand  Jury  had,  by  oversight,  omitted  to  '^ike  any 
steps   respecting    it  at   the  assizes.     Wichlow  Presentment. 

Page  102 
OATH. 
See  Unlawful  Oaths. 

PARTY  PROCESSIONS. 

Ail  indictment  is  maintainable  on  the  first  section  of  the  Party 
Processions'  Act,  (2  &  3  Wm.  IV.  c.  118,)  taken  by  itself. 
Anonymous.  155 

PEACE  PRESERVATION  ACT. 

See  Affidavit. 

PERJURY. 

1.  Conviction  for  perjury  held  bad,  where  an  objection  was 
taken  in  arrest  of  judgment  that  the  indictment  did  not  stale 
that  the  false  swearing  was  with  respect  to  a  matt  r  essen- 
tial to  the  matter  in  issue,  although  it  appeared  in  evidence 
that  it  was  so.     Rex  v.  Prendergast.  64 

2.  An  indictment  for  perjury,  stating  that  the  traverser  "did 
malici.y;sly  depose  and  swear,"  &c.  and  concluding  that  so 
the  said  traverser  "falsely,  maliciouslv,  and  wickedly,  in 
nuinner  and  form  aforesaid,"  did  commit  perjury,  is  bad. 
Her  r.  Tierney.  I79 

Z.  Indi«twent  for  perjury  committed  upon  a  trial  for  burglary. 
The  perjury  assigned  was,  that  the  prisoner  swore  upon  that 
tri-al  that  ho  had  not  heard  a  certain  conversation,  whereas 
in  fact  he  bad  fK;ard  it.  To  support  the  charge  of  perjurj^ 
informations  were  proved  (by  the  evidence  of  one  of  the 
magistrates  who  took  them,)  in  which  the  prisoner  swore  he 


428 


INDEX 


VEJimRY— continued. 

had  heard  the  conversation;  and  two  witnesses,  one  of  whom 
was  the  same  magistrate  who  proved  the  informations, 
proved  that  tiie  prisoner  liad  sworn  at  liie  trial  tliat  he  had 
not  heard  it.  Held,  that  a  convietion  on  this  evidence  was 
wrong.     Rcgiua  v.  Gaynoi:  Page  262 

PERSONATING. 

1.  An  indictment  under  the  46  Geo.  HI.  c.  69,  s.  8,  for  person- 
ating .T.  II.  (a  deceased  person,)  the  said  J.  H.  "being  then 
and  there  a  person  supposed  to  be  entitled"  (or  "being  a  per- 
son entitled,")  to  a  certain  pension,  is  bad.    Rex  v.  Kerffe.    6 

2.  Semble,  that  a  good  indictment  might  be  framed  for  person- 
ating a  deceased  man,  in  order  to  receive  a  pension,  although 
the  person  applied  to  for  the  pension  knew  that  the  party 
personated  was  dead.  Ibid. 

3.  To  personate  a  deceased  disabled  soldier  was  an  offence 
within  the  46  Geo.  III.  c.  69,  s.  8.     Rex  v.  Fitzmaurice.     29 

4.  The  word  "person"  applies  to  the  dead  as  well  as  to  the 
living.  Ibid. 

5.  Sc.rnhh,  that  an  averment  that  a  man  had  served  in  a  regi- 
ment "of  our  Lord  the  King,"  is  not  supported  by  evidence 
that  he  had  served  in  the  reign  of  the  late  King.  Ibid. 

PIGS. 

An  indictment  for  receiving  stolen  pigs  in  Londonderry,  is  sup- 
ported by  evidence  that  the  pigs  were  first  brought  to  the 
prisoner  in  Donegal,  and  afterwards  sold  by  him,  slaughtered, 
in  Londonderry.     Rex  v.  Connor.  150 

PLEADING. 

1.  A  man  jointly  indicted  with  others,  and  who  has  pleaded 
not  guilty,  cannot  be  a  witness  for  the  prosecution,  whilst 
his  plea  stands.     Rex  v.  Ryan.  5 

2.  "  Draft  and  order  for  payment  of  money,"  is  a  sufficient 
description  within  the  meaning  of  a  statute  which  makes  the 
stealing  of  a  warrant  for  payment  oi  money,  felony.  Rex  v. 
Beard.  9 

3.  An  indictment  for  abduction  stated  in  one  count,  that  the 


.U,l| 


II 


;  of  whom 
jrmations, 
lat  he  had 
deuce  was 
Page  262 

for  person- 
beini^  then 
eing  a  per- 
'.  Kecffe.    6 
for  person- 
)n,  although 
It  the  party 
Ibid. 
an  offence 
\aurice.     29 
11  as  to  the 
Ibid. 
;d  in  a  regi- 
by  evidence 
Ibid. 


erry,  is  sup- 
jught  to  the 
slaughtered, 
150 


has  pleaded 
;iUion,  whilst 

5 

s  a  sufficient 

h  makes  the 

ony.    Bex  v. 

9 
unt,  that  the 


1 


TO    THE    PRINCIPAL    MATTERS. 


499 


PLEADING— con/mj^erf. 

prisoners,  on  &.c.,  at  &c.,  upon  one  H.  G.,  then  and  there 
being,  did  make  an  assault,  and  her  the  said  H.  G.  did  carry 
away.  Another  count  stated,  in  the  same  terms,  an  assault 
and  abduction  by  persons  unknown,  and  that  the  prisoners 
were  then  and  there  present,  aiding  and  abetting.  Held  by 
eight  Judges  against  three,  that  the  indictment  was  bad  for 
want  of  a  venue. 

It  is  no  valid  objection  that  such  an  indictment  (under  19  G.  2, 
c.  13)  concludes  against  the  form  of  the  "  statute,"  instead 
of  "  statutes."     Rex  v.  Browne.  Page  21 

4.  Tiie  prisoner  peremptorily  challenged  one  of  the  jury  on  his 
coming  to  the  box;  the  Court  refused  the  challenge,  and  the 
juryman  was  sworn.  When  judgment  was  about  to  be  pro- 
nounced, the  prisoner's  counsel  tendered  a  plea,  praying  a 
reversal  of  the  judgment,  because  of  the  challenge  not  having 
been  allowed,  which  plea  the  Court  refused  to  receive.  Held 
that  tlio  Court  was  right  in  refusing  to  receive  it.  Bex  v. 
jldams  Sf  Langion.  135 

See  FoRcjERV,  2.  Larcexy,  2.  Letters,  Personating,  1. 

POISONING. 

1.  An  indictment  charged  an  attempt  to  poison  by  mixing  a 
certain  noxious  and  destructive  thing  called  sugar  of  lead, 
with  flour,  and  administering  the  said  poison  so  mixed  with 
flour.  The  jury  found  the  prisoner  guilty,  but  stated  that 
they  could  not  say  what  particular  kind  of  poison  had  been 
mixed  up  with  the  flour.  Held  that  the  conviction  was 
good.     Bex  V.  Shannon.  209 

2.  The  prisoner  was  indicted  for  soliciting  J.  B.  to  murder 
C.  M.  The  evidence  was,  that  the  prisoner  procured  salt- 
petre and  gave  it  to  .T.  B.  to  be  administered  to  C.  M.,  and 
that  J.  B.  administered  it  accordingly,  and  that  C.  M.  de- 
tected the  noisou  in  time  to  save  her  life  after  having  swal- 
lowed son**;  of  It.  The  jury  found  the  prisoner  guilty,  and 
■Uiled  ihoi:  opinion  to  l)e,  that  the  solicitation  was  to  admi- 
BHier  sa^petre  with  intent  to  poison,  and  that  the  saltpetre 
had  been  attempted  to  be  administered.     Held  that  the  con- 


i 

i:  1' 


430 


INDEX 


FOlSONmG— continued. 

viction  was  good,  the  prisoner  having  been  rightly  indicted, 
as  a  principal,  for  soliciting  to  murder,  instead  of  as  an  ac- 
cessary before  tfie  fact  to  the  administering  poison  with  in- 
tent to  murder;  and  the  10  Geo.  IV.,  c.  34,  s.  9,  not  having 
been  repealed  by  the  1  Vict.  c.  85,  s.  3.     Regina  v.  Muvphy. 

Page  315. 
POST-OFFICE. 
See  Letters. 

PRACTICE. 

See  the  different  heads. 

PRESENTMENT. 

1.  Where  a  prcscntTient  was  made,  without  being  traversed, 
of  a  certain  sum  to  be  paid  by  instalments;  and  at  the  next 
assizes  a  presentment  was  made  of  one  of  these  instalments; 
Held,  that  a  traverse  did  not  lie  to  the  latter  presentment. 
Co.  Doiim  Presentment.  20 

2.  The  passing  of  a  presentment  is  primd  facie  evidence  of  the 
legality  of  proceedings  under  the  69  Geo.  III.  c.  84,  on  the 
part  of  a  person  who  has  obtained  a  road  presentment. 
Queen's  Co.  Presentment.  40 

3.  A  presentment  cannot  be  made  after  the  assizes  nunc  pro 
tunc,  where  the  Grand  Jury  had,  by  oversight,  omitted  to 
take  any  steps  respecting  it  at  the  assizes.  Wicklow  Present' 
ment.  102 

4.  The  magistrates  at  special  sessions  under  the  59  Ge'\  III. 
c.  84.  not  having  sufficient  lime  to  consider  all  the  present- 
ments (one  da};  only  having  been  appointed  by  the  Grand 
Jury  for  the  purpose),  selected  a  certain  number,  and  left  the 
rest  unconsidered.  Held,  that  such  selection  did  not  render 
the  proceedings  illegal.  Held  also,  that  under  that  act  it  is 
not  necessary  that  all  the  three  magistrates  (not  being  agents,) 
whose  presence  was  rendered  necessary  at  the  sessions, 
should  be  resident  in  the  county.    Co.  Armagh  Presentments. 

141 

5.  Held,  that  the  Grand  Jury  had  no  power  at  the  assizes  to 
make  presentments  upon  applications  which  had  not  been 


1 


TO    THE   PRINCIPAL   MATTERS. 


431 


Y  indicted, 
as  an  ac- 
ti  with  in- 
lot  iiaviiig 
r.  Murfhy. 
Page  315. 


traversed, 
at  the  next 
istalments; 
esentment. 

20 
ence  of  the 
84,  on  the 
•esentment. 

40 

s  nunc  pro 

omitted  to 

010  Pre  sen  t- 

102 
iOGe- .III. 
he  present- 
the  Grand 
and  left  the 
I  not  render 
hat  act  it  is 
ing  agents,) 
le  sessions, 
resentments. 

141 
e  assizes  to 
id  not  been 


PRESENTMENT— continued. 

laid  before  the  magistrates  at  the  special  sessions  next  before 
those  assizes,  under  the  59  Geo.  III.  c.  84.  Co.  Tyrone  Pre- 
sentment. />y„.p  ]45 

6.  Applications  for  presentments  cannot  be  legally  made  after 
the  precise  day  appointed  by  the  Grand  Jury  for  holding  the 
sessions,  where  there  has  been  no  meetit)g  on,  or  adjourn- 
ment from,  that  day.     Co.  Tyrone  Presentment.  147 

7.  Held,  that  a  presentment  for  the  repayment  of  money  ad- 
vanced by  the  Lord  Lieutenant  out  of  the  Consolidated 
Fund,  under  the  58  Geo.  III.  c.  47,  and  2  VV.  IV.  c.  9,  to 
the  Boards  of  Health  established  in  different  districts  of  a 
county,  should  be  raised  off  the  county  at  large,  and  not  off 
the  respective  districts.     Mayo  Presentment.  171 

8.  Held  that  the  G  Geo.  IV.  c.  101,  s.  5,  and  the  1  &  2  Wm.  IV. 
c.  33,  s.  107,  as  to  presentments  by  Grand  Juries  of  sums 
equal  to  those  advanced  out  of  (he  Consolidated  Fund  for  the 
repair  of  roads,  were  imperative  upon  the  Grand  Jury. 
Roscommon  Presentments.  173 

9.  A  presentment  in  the  form  of  a  general  authority  to  the  trea- 
surer to  make  advances  to  contractors  in  every  case  where 
the  sum  should  exceed  £20,  held  not  to  be  warranted  by 
the  3  &  4  VV.  IV.  c.  78,  s.  49,  (6  &  7  Wm.  IV.  c.  1 16,  s.  128.) 
Co.  Wicklow  Presentment.  191 

10.  Where  the  magistrates  at  sessions  left  blanks  in  some  of 
the  numbers  in  the  schedule  relating  to  presentments  for 
coroners,  on  account  of  doubts  which  they  felt  as  to  the 
sums  to  be  inserted;  Held,  that  it  was  competent  to  the 
Grand  Jury  to  fill  up  these  blanks,  after  having  been  advised 
by  the  Judge;  notwithstanding  the  6  &  7  Wm.  IV.  c.  116, 
s.  47.     Cavan  Presentment.  2II 

11.  The  construction  of  the  6  &  7  Wm.  IV.  c.  116,  s.  1,  is, 
that  no  presentment  can  be  lawful  unless  authorized  by  an 
enactment,  or  an  express  exception,  in  that  statute.  Cavan 
Presentment.  216 

12.  Where  an  application  for  a  public  work  (a  bridge)  had 
been  brought  forward  at  presentment  sessions  by  two  cess 


433 


INDEX 


l\ 


PRESENTMENT— con<m?<c<;. 

payers.,  and  being  rejected  there,  was  brought  before  the 
Judge  of  Assize,  under  the  6  &  7  Wm.  IV.  c.  116,  s.  18: 
Held,  first,  that  the  Judge  was  not  at  liberty  to  direct  the 
Grand  Jury  to  make  such  a  presentment,  without  causing  a 
petit  jury  to  be  impanneletl;  secondly,  that  the  Judge  was 
bound  to  cause  a  petit  juiy  to  be  impanneled  upon  a  proper 
memorial  being  preferred,  and  the  requisites  under  the  sta- 
tute performed:  and  thirdly,  that  the  Judge  had,  after  a  ver- 
dict for  the  applicant,  a  discretion  to  direct  the  Grand  Jury 
to  consider  the  case  or  not.  Weslmealh  Presentment.  Page  295 

13.  Where  after  the  division  of  a  county  into  two  ridings  by 
proclamation  under  the  6  &.  7  Wm.  IV.  c.  116,  s.  176,  pre- 
sentments for  the  north  riding,  founded  on  contracts  entered 
into  after  the  division,  were  by  mistake  passed  at  the  assizes 
for  the  south  riding;  held,  that  the  Judge  of  Assize  had  no 
power  to  rectify  the  mistake  by  ordering  the  presentments 
to  be  levied  on  the  north  riding.  Tipperary  Presentment.  310 

And  see  the  different  heads. 

PRINCIPAL  AND  ACCESSARY. 
See  Poisoning,  2. 

PRINTING. 

A  contract  to  perform  the  printing  work  of  a  county  for  one 
year  is  warranted  by  the  6  &  7  Wm.  IV.  c.  116,  s.  47. 
Tipperary  Presentment.  254 

PRISON. 

See  Gaol,  Medical  Officers. 

PRIVILEGED  COMMUNICATION. 

On  the  trial  of  an  indictment  for  forging  an  accountable  receipt, 
a  witness  proved  that  the  prisoner,  with  whose  family  he 
had  been  acquainted,  had  handed  him  the  document,  and 
requested  him  to  institute  proceedings  upon  it;  this  the  wit- 
ness refused  to  do,  but  kept  the  document,  and  delivered  it 
to  a  third  person  to  be  shown  to  the  party  whose  name  was 
forged;  after  which  the  witness  returned  it  to  the  prisoner. 


•aa^HHi 


TO  THE  PRINCIPAL   MATTERS.  433 

PIIIVILEGED  COMMimiCATlON— continued. 

The  prisoner  being  convicted,  held,  that  the  conviction  was 
wrong,  on  the  ground  that  the  communication  between  the 
witness  and  the  defendant  was  privileged.  Rcgina  v.  Duna- 
gher.  p„gp^  211 

PROMISSORY  NOTES. 

Where  a  statute  made  the  stealing  of  a  promissory  note  lar- 
ceny, and  a  subsequent  statute  provided  for  the  punishment 
of  receivers  of  stolen  "goods  or  chattels:"  Held,  that  pro- 
missory notes  were  "goods,"  vvithir.  the  meaning  of  the  latter 
Act.     Rex  v.  Crone.  47 

PROSECUTORS. 

1.  The  Clerk  of  the  Crown  is  not  of  right  entitled  to  the  fees  of 
2s.  2d.  &  6s.  8d.  for  searches  in  the  Crown  office,  and 
copies  of  informations,  as  part  of  the  expenses  of  prosecution 
under  a  Judge's  order,  unless  in  cases  where  the  copies  were 
actually  furnished,  and  were  necessary.  In  re  Prosecutors' 
Expenses,  Leinster  Circuit.  41 

2.  The  Judge  has  a  discretion  in  ordering  the  expenses  of  pro- 
secutors to  be  paid  to  them.  y/,/^/. 

Where  the  bills  are  ignored,  no  order  can  be  made  for  a  pro- 
secutor's expenses,  under  55  Geo.  III.  c.  91,  s.  1.  Prosecu- 
tors' Expenses,  Co.  Killienny.  43 

RECEIVER. 

1.  The  receiver  of  a  stolen  promissory  note  was  indicted  for  a 
substantive  felony  under  the  9  Geo.  IV.  c.  55,  s.  47,  and  a 
witness  for  the  crown  proved  that  he  (witness,)  had  stolen 
the  note;  but  it  appeared  on  his  cross-examination  that  he 
had  been  tried  for  the  larceny  and  acquitted,  a  fact  of  which 
the  Judge  had  judicial  knowledge.  Held,  that  the  acquittal 
of  the  principal  was  not  conclusive  evidence  of  his  innocence, 
but  that  the  Judge  was  right  in  leaving  to  the  jury  the  fact 
of  the  acquittal,  together  with  the  witness's  averment  of  the 
theft.     Rex  v.  M'Cue.  120 

2.  An  indictment  for  receiving  stolen  pigs  in  Londonderry  is 
supported  by  evidence  that  the  pigs  were  first  broujiht  to  the 
66 


431 


INDEX 


RECEIYER— continued. 

prisoner  in  Donegal,  and  afterw:..'ds  sold  by  him,  slaughtered, 
in  Londonderry.     Hex  v.  Connor.  Page  150 

HEPLEVIN. 
See  Civil  Bill. 

RESERVED  CASES. 

1.  Reserved  crown  cases  are  to  be  argued  by  one  counsel  on 
each  side,  when  the  Judge  wlio  tried  the  case  below  and  re- 
served it,  shall  desire  it.  1 

2.  Held,  that  the  opinion  of  the  majority  of  the  Judges  upon 
cases  reserved  from  circuit  is  binding  upon  the  individual 
Judges,  whatever  their  own  opinion  may  be.  Decisions  on 
Reserved  Cases.  234 

RIOT. 

A  notice  posted  in  a  public  place,  and  in  the  following  terms: 
"  Mr.  B.  take  notice  that  Terry  and  his  men  will  pay  you  a 
visit  in  ten  days.  I  would  recommend  the  Gerathys  of  Kil- 
ligenan  to  lower  the  con  acre  rent,  or  I  will  write  to  his  Ex- 
cellency;" signed,  "Terry  and  his  mother;"  is  not  in  itself 
a  notice  tending  to  excite  a  I'ioi  or  tumultuous  meeting,  or  an 
unlawful  combination,  or  confederacy,  under  27  Geo.  III.  c.  15, 
s.  9.     Rex  v.  M'Dcrmod.  118 

ROADS. 

1.  The  passing  of  a  presentment  is  prima  facie  evidence  of  the 
legality  of  proceedings  under  the  59  Geo.  III.  c.  84,  on  the 
part  of  a  person  who  has  obtained  a  road  presentment. 
Queen's  Co.  Presentment.  40 

2.  Held,  that  in  consequence  of  the  6  and  7  Wm.  IV.  c.  116, 
the  Grand  Jury  had  no  power  to  make  a  presentment  for  the 
expenses  of  repairing  a  turnpike  road  in  Tipperary,  under 
the  3  &  4  Wm.  IV.  c.  112,  s.  92,  where  the  application  for 
that  purpose  had  been  disallowed  at  thy  sessions.  Tipperary 
Presentment.  307 

See  Traverse,  2,  4. 


TO  THE   PRINCIPAL   MATTERS. 


438 


aiightcrcd, 
Page  150 


counsel  on 

uw  and  re- 

1 

idgcs  upon 

individual 

decisions  on 

234 


iring  terms: 
pay  you  a 
liys  of  Kil- 
;  to  his  Ex- 
not  in  itself 
el'mg,  or  an 
!0.  HI.  c.  15, 
118 


ROBBERY. 

1.  The  prisoner  was  convicted  on  an  indictment  purporting  to 
be  for  highway  robbery,  but  omitting  the  words  as  to  taking 

from  the  person  of  the  prosecutor.  Held,  that  this  was  a  bad 
conviction  for  iiighway  robbery,  but  good  for  larceny.  Rex 
V.  Rogan.  p^^g,.  (.3 

2.  Where  liusband  and  wife  are  both  concerned  in  a  highway 
robbery,  the  presence  of  the  husband  at  the  commission  of 
the  otrence  is  only  presumptive  evidence  of  coercion  exer- 
cised  by  him  over  the  wife.  Sernhle,  that  in  a  case  of  high- 
way robbery,  coei-cion  by  the  husband  is  not  a  defence  for 
the  wife.     Rex  v.  Slap/eton.  93 

3.  Held,  that  petitions  for  compensation  for  losses  sustained  by 
highway  robbery  were  not  within  the  3  &  4  Wm.  IV.  c.  78, 
s.  70.    Robbery  Petition.  202 

See  Letters. 

ROGUE  AND  VAGABOND. 

Proceedings  against  a  person  delivering  himself  up  as  a  deserter, 
under  the  Mutiny  Act,  as  a  "  rogue  and  vagabond."  Rex  v. 
M^Clushj.  Ig2 

SENESCHAL. 
See  Manor  Court. 


Jenccof  the 

.  84,  on  the 

)resentment. 

40 

IV.  c.  116, 

nrient  for  the 

Tary,  under 

plication  for 

Tipperari/ 

307 


SENTENCE. 

1.  On  a  conviction  for  administering  an  unlawful  oath,  the  pri- 
soner  may  be  sentenced  to  hard  labour  and  imprisonment, 
by  virtue  of  the  51  Geo.  .3,  c.  03,  s.  2.   Rex  v.  JVoonan.    108 

2.  Where  the  Judge  omitted,  in  pronouncing  sentence  on  a 
conviction  for  murder,  to  order  that  t.'ie  bodies  of  the  pri- 
soners should  be  buried  within  the  precincts  of  the  gaol,  as 
directed  by  the  4  &  5  Wm.  IV.  c.  26,  s.  2;  but  on  a  subse- 
quent day,  on  ruling  the  book  at  the  close  of  the  same  assizes, 
in  ;he  absence  of  the  prisoners,  ordered  the  clause  in  ques- 
tion to  be  inserted.  Held,  that  the  sentence  was  illegal,  not- 
withstanding the  6  &  7  Wm.  IV.  c.  30,  s.  2.  Regina  v, 
Hartnett  and  Casey.  302 


4M 


INDEX 


SERVANT. 
See  EMne/ZLKMEivT. 

SHANNON  COMMISSION. 

A  certificate  ol'llio  Shannon  Navigation  Commissioners  ascer- 
taining the  sums  rcfiayable  l)y  a  county,  under  2  &-  3  Vict. 
c.  01,  s.  04,  is  not  defective  tor  stating  that  a  particular  sum 
is  to  be  levied  olT  one  Barony,  and  for  being  silent  as  to  the 
proportions  to  be  levied  off  the  other  Baronies;  and  the  .Tudge 
of  Assize  is  authorized  upon  the  refusal  of  the  Grand  Jury  to 
present  in  pui'suance  of  sucii  a  certificate,  to  malie  an  order 
under  section  65,  directing  the  spt  oific  sum  to  be  levied  off 
that  one  Barony,  and  the  residue  rateably  off  the  other 
Baronies.  J\Iai/o  Presentment,  Shannon  Commission.  Page  323 

SHEEP  STEALING. 

An  indictment  for  stealing  sh(  (;p  is  supported  by  evidence  of 
stealing  ewes.    Rcgina  v.  Barran  and  Murphy.  245 

SHERIFF. 

See  Adjoupned  Assizes. 

SHOOTING  AT. 

1.  The  prisoner  was  convicted  upon  two  indictments,  one  for 
shooting  at  A.  with  intent  to  kill  him,  and  the  other  for  shoot- 
ing at  B.  with  intent  to  kill  him;  the  Jury  finding  that  he  in- 
tended to  kill  whichever  the  shot  should  strike,  but  not  both. 
Held,  that  he  was  rightly  convicted.     Rex  v.  Larkin         60 

2.  An  indictment  charged  the  prisoner  with  shooting  at  y  ' .. 
with  intent  to  maim  and  disable  him,  statincr  in  one  count 
that  the  gun  was  lo.ulod  with  gunpowder  and  leaden  slugs, 
and  in  another  count  with  gunpowder  and  leaden  shot. 
There  was  no  evidence  that  any  ball,  slug,  or  shot  had  been 
found,  or  any  wound  inflicted;  nor  w.is  it  shown  in  what 
manner  the  gun  had  been  loaded.  The  Judge  told  the  Jury 
it  was  not  necessary  that  they  should  be  satisfied  that  the 
gun  was  loaded  with  slugs  or  shot,  but  that  if  they  believed 
it  was  loaded  with  any  substance  calculated  to  act  like  slugs 
or  shot,  it  was  sufficient;  and  he  left  the  case  to  the  Jury,  to 


JHafiBBBOBH 


crs  asccr- 
&L  3  Vict. 
:ular  Slim 
as  to  tho 
the  Judge 
id  Jury  to 
!  an  order 
levied  off 
the  other 
Page  323 


^idence  of 
245 


s,  one  for 
for  shoot- 
hat  he  in- 
:  not  both. 
■in         60 

at  r  '.. 

one  count 
den  slugs, 
don   shot. 

had  been 
1  in  what 
1  the  Jury 
1  that  tiie 
y  believed 

like  slugs 
le  Jury,  to 


TO  TIIK    PRINCIPAL   MATTERS. 


m 


SHOOTING  AT.— contimted. 

say  upon  tho  circ-unisfantia!  evidence  whethor  it  was  so 
loaded.  Tho  Jury  fouiKi  tho  piisoiior  gnilly.  Held,  that  (lie 
conviction  was  right.     Rcgiua  v.  linidi/.  Page  257 

SOLDIER. 

See  Personatiivg. 

SPECIAL  COMMISSION. 

1.  A  Commission  to  the  going  Judge  of  Assize  for  the  trial  of 
Admiralty  oflbnces,  under  the  23  &.  24  (Jeo.  HI.  c.  14,  s.  4, 
is  not  a  Special  Commission  within  the  meaning  of  the 
4  Geo.  IV.  c.  43,  s.  3.  (0  &  7  VVm.  I V.  c.  1 10,  s.  1 13.)  Cork 
Presentment.  j)^ 

2.  Where  on  a  trial  at  a  Special  Commission,  the  Jury  could 
not  agree,  and  after  remaining  a  long  time  shut  up,  were 
discharged  by  the  Court  (no  consent  being  given  by  the  coun- 
sel on  either  side,)  in  consequence  of  the  physician's  report 
that  a  longer  confinement  would  endanger  the  lives  of  some 
of  them  :  Held,  that  they  were  properly  so  discharged,  and 
that  the  prisoners  were  triable  again;  and  that  they  might 
have  been  tried  at  the  same  Commission,  if  the  Judge  had 
thought  proper.     Rex  v.  Barrett.  103 

SPECIAL  SESSIONS. 

1.  The  Magistrates  at  Special  Sessions  under  the  59  Geo.  IIL 
c.  84,  not  having  sufficient  time  to  consider  all  the  Present- 
ments, (one  day  only  having  been  appointed  by  the  Grand 
Jury  for  the  purpose,)  selected  a  certain  number  and  loft  the 
rest  unconside/ed.  Held,  that  such  selection  did  not  render 
the  proceedings  illegal.  Held  also,  that  under  that  Act  it  is 
not  necessary  that  all  the  three  Magistrates  (not  being  agents) 
whose  presence  was  rendered  necessary  at  the  sessions 
should  be  resident  in  the  county.   Armagk  Presentments.    141 

2.  Held,  that  the  Grand  Jury  had  no  power  at  the  Assizes  to 
make  Presentments  upon  applications  whirli  had  not  been 
laid  before  the  Magistrates  at  the  Special  Sess,  s  next 
before  those  Assizes,  under  the  59  Geo.  HI.  c.  84  Tyrone 
Presentments,  Strabane.  I54 


4n 


INDEX 


SPECIAL  SESSIONS— (•««//« ned 

3.  Appliciitidiis  for  Picsotilinonts  nnntint  bo  lof;nIIy  mndo  nftcr 
the  precise  dny  nppoiiitcjfl  l)v  the  (Jiniid  Jury  Inr  holiMnjj  tho 
Scssiiiiis,  whfiie  there  lias  hecii  no  tneetiiii;  on,  or  ndjoin'n- 
nnent  iVoni,  ihut  duy.     Co.  Ti/rane  Presentments,  Viigiinrion. 

Page  147 
SURGEONS. 
Hee  Meimcal  Ofi'icers. 

SURVEYOR. 

Held,  that  where  a  County  Surveyor  had  been  appointed  only 
two  months  before  the  Assizes,  the  Grand  Jury  were  not 
bound  to  present  lor  a  iVill  moiety  of  his  salary,  or  n  full 
moiety  of  the  expenses  of  his  ollicc  and  clerk  under  ss.  31) 
&  41  of  the  3  &  4  Wm.  4,  c.  78.  Held  also— that  even  if 
the  moiety  ought  to  have  been  presented  by  a  former  Grand 
Jury,  a  subsequent  Grand  Jury  could  not  rectify  the  mistake. 
King's  County  Presentment.  170 

TRAVERSE. 

1.  Where  a  Presentment  was  made,  without  being  traversed, 
of  a  certain  sum  to  be  paid  by  instalments,  and  at  the  next 
Assizes  a  Presentment  was  made  of  one  of  these  instalments: 
Held,  that  a  traverse  did  not  lie  to  the  latter  Presentment. 
Co.  Down  Presentments.  20 

2.  Held,  that  the  notice  of  traverses  directed  to  be  given  by 
the  3  &  4  Wm.  IV.  c.  78,  s.  .5.'>,  previous  to  the  commence- 
ment of  the  Assizes,  should  be  given  previous  to  the  swearing 
of  the  Grand  Jury  for  fiscal  business.  Such  traverse,  when 
entered  too  late  at  one  Assizes,  cannot  be  tried  at  the  next. 
Co.  Kilkenny  Presentment.  102 

3.  A  Fee  to  the  Judge's  Crier,  upon  the  entry  of  each  road 
traverse  for  damages,  is  legal,  notwithstanding  the  6  &  7 
Wm.  IV.  c.  110,  s.  110. 

Qucere  as  to  the  legality  of  a  Fee  to  the  Clerk  of  the  Crown 
under  the  same  circumstances.     Clare  Presentment.        272 

4.  The  two  days'  notice  of  a  road  traverse  for  inutility  required 
by  the  133d  section  of  the  6  (fe  7  Wm.  IV.  c.  116,  means  a 


■i 


.iiiiM<''--< 


TO    THE    PRINCIPAL    MATTERS, 


481 


inde  after 
i)|(lin^  tho 
r  udjodi'ii- 
)iifrii>irion. 
Page  1 17 


intcd  only 
were  not 
,  or  n  full 
ider  ss.  31) 
lat  even  if 
icr  Grand 
e  mistake. 
170 


traversed, 

it  the  next 

stalmcnts: 

3sentment. 

20 

given  by 

ammcnce- 

!  swearinnf 

;r.se,  when 

t  the  next. 

102 

3ach  road 

the  6  &  7 

he  Crown 
It.  272 
y  required 
»,  means  a 


notice  within  two  days  of  the  First  Sessions  at  which  tho 
a|)|)iicuti(»n  for  tho  road  was  ai)|)r(»ved  under  sec.  27  of  that 
i\ct,  and  not  witliin  two  days  of  tho  Sessions  after  tho  As- 
sizes, under  s.  28.  Fermanagh  Presentment.  Page  322 
See  Court  House,  2. 

TREASURER. 

1.  Where  the  Treasurer  of  a  County  proved  a  defaulter  to 
Government  in  the  re|)ayinent  of  advances  made  by  tho 
Government  to  the  County,  (tiie  amount  of  which  had  been 
presented  Ijy  tlie  Grand  .Jury,  raised,  and  paid  into  tho  Trea- 
surer's hands,)  and,  after  the  Government  had  sued  him  and 
his  sureties  upon  their  recognizances,  there  still  remained  a 
balance  due:  Held,  that  the  Grand  Jury  were  not  bound  to 
present  for  the  deficiency,  under  s.  145  of  the  «  &  7  VVm. 
IV.  c.  11(5,  and  that  the  Judge  on  tlieir  refusal  was  not  bound 
to  make  an  order  under  s.  17!)  of  that  Act.— Semble,  that 
the  Crown  is  not  within  s.  145  of  the  0  .t  7  Wm.  IV,  c.  110. 
Tyrone  Presentment.  224 

2.  A  Collector  of  Grand  Jury  Cess  having  proved  a  defluilter, 
the  Granfl  Jury  sued  the  Treasurer  in  the  Court  of  Exche- 
quer, where  the  Court  gave  judgment  for  the  defendant, 
holding  that  it  was  the  duty  of  the  Grand  Jury,  and  not  of 
the  Treasurer,  to  take  care  that  the  Collector  should  give 
sulliciont  security.  The  Grand  Jury  afterwards  made  a 
Presentment  for  the  deficient  sum,  to  be  levied  off  the  County, 
and  paid  to  the  Treasurer,  he  having  debited  himself  condi- 
tionally with  that  amount.  Held,  that  the  Presentment  was 
legal.     Qtieen^s  Count//  Presentment.  231 

TRIAL. 

After  the  prisoner  had  been  given  in  charge,  it  appeared  that 
the  prosecutrix,  a  child  of  four  years  of  age,  did  not  suffi- 
ciently  understand  the  nature  of  an  oath;  and  it  was  admitted 
on  the  part  of  the  Crown,  that  there  was  no  other  evidence 
to  sustain  the  case.  Held,  that  the  prisoner  was  entitled  to 
an  acquittal.     Rt-gina  v.  Ouhighan.  270 


440 


INDEX 


UNLAWFUL  OATHS. 

1.  On  a  conviction  for  administering  an  unlawful  oath,  the  pri- 
soner may  bo  sentenced  to  hard  labour  and  imprisonment, 
by  virtue  of  the  51  Geo.  III.  c.  63,  s,  2. — Qnccre,  whether  to 
support  an  indictment  under  the  50  Geo.  III.  c.  102,  s.  1,  for 
administering  an  unlawful  oath,  it  must  be  proved  that  the 
country  was  in  a  state  of  disturbance?    Rex  v.  JVoonan. 

Page  108 

2.  An  indictment  under  the  27  Geo.  III.  c.  15,  s.  6,  for  admi- 
nistering an  unlawful  oath,  is  supported  by  evidence  that  the 
prisoner  compelled  the  prosccutci  to  swear  "that  he  would 
give  up  his  land  to  A.  B."    Rex  v.  Mains  4*  Langlon.     135 

UTTERING. 

1.  Where  the  prisoner  was  present  at  a  sale  of  goods  by  tho 
prosecutor  to  a  third  person,  (who  was  introduced  by  the 
prisoner  to  the  prosecutor  as  a  purchaser,)  and  took  up  a 
Bank  Note  given  by  that  person  in  payment,  saying  that  it 
was  good,  and  that  he  would  make  it  good,  and  desired  the 
prosecutor  to  write  his  (prisoner's)  name  upon  it;  the  note 
proving  a  forgery:  Held,  that  there  was  sufficient  evidence 
of  idler  in  g  by  the  prisoner.    Rex  v.  Cush/an.  113 

2.  Setnhle,  that  reading  out  a  document,  although  the  party 
refuses  to  show  it,  is  a  sufficient  uttering.     Regina  v.  Green. 

282 


VAGRANTS. 

Held,  by  eleven  Judges,  that  the  Vagrant  Acts  (1  Ann  c.  11, 
9  Geo.  II.  c.  6,  11  &,  12  Geo.  III.  c.  30,  and  31  Geo.  III.  c. 
44,)  apply  to  the  several  counties  in  Ireland,  and  not  to  the 
county  and  city  of  Dublin  alone.  Held  also,  by  six  Judges 
to  five,  that  those  Acts  apply  to  women  as  well  as  men. 
Mealh  Presentment.  289 

See  Deserter. 

VARIANCE. 

1.  The  informations,  warrant  of  committal,  and  indictment, 
stated  an  offence  committed  on  Monday  the  12th.  In  the 
course  of  the  trial  it  became  necessary  to  fix  the  precise  date 


TO   THE   PRINCIPAL    MATTERS. 


4M 


[h,  the  pri- 
risonment, 
/vhelher  to 
2,  s.  1,  for 
i  that  the 
'.  JVoonan. 
Page  108 
,  for  admi- 
re that  the 

I  he  would 
qton.     135 

)ds  by  tho 
;ed  by  the 
took  up  a 
ing  that  it 
k'sired  the 
t;  the  note 
t  evidence 

113 

the  party 

;  V.  Green. 

282 

Ann  c.  11, 

jleo.  J 1 1,  c. 

not  to  the 

six  Judges 

II  as  men. 

289 


ndictnicnt, 
Ih.  In  the 
recisc  dale 


VARIANCE— continued. 

of  the  ofTencc,  which  was  proved  to  be  Monday  the  5th. 
Held,  that  a  conviction  under  those  circumstances  was  legal. 
Hex  V.  Jones.  Pairel2 

2.  An  indictment  for  sending  to  the  Lord  Lieutenant  a  false 
recommendation  of  persons  convicted,  charged  that  the  pri- 
soner forged  the  signature  of  «T.  King,  rector  of  T."  The 
evidence  was,  that  the  name  forged  by  the  prisoner  was  "T. 
Knox,  rector  of  T."  The  Judge  having  given  leave  to 
amend,  by  substituting  "Knox"  for  "King:"  Held,  that  there 
was  no  fatal  variance  on  the  ground  of  its  appearing  in  evi- 
dence that  T.  Knox  was  in  fact  rector  of  A.,  and  that  there 
was  no  such  parish  as  that  of  T.  Held,  also,  that  proof  of 
the  document  which  contained  the  false  recommendatiou 
being  in  the  prisoner's  handwriting,  and  dated  in  the  county 
in  which  the  venue  was  laid,  was  sijfficient  evidence  of  acts 
done  in  that  county.     Rex  v.  Dwyer.  log 

VENUE. 

See  ABDucTioiv. 

WARRANT. 

-See  Manslaughter,  2. 

WEIGHTS  AND  MEASURES. 

Held,  that  tho  6th  and  7th  sections  of  4  &  5  Wm.  IV.  c.  40, 
(weights  and  measures,)  were  imperative.    Kildare  PresenU 

174 

WHITEBOY. 

1.  An  indictment  under  the  27th  Geo.  IIL  c.  15,  s.  10,  will  be 
sustained  by  evidence  of  supplying  ammunition  to  a  person 
who  only  pretended  to  get  it  for  the  use  of  the  Whiteboys. 
Rex  v.  Hef  email.  2 

2.  An  indictment  under  the  Whiteboy  Act  for  an  injury  to  a 
gatehouse,  stating  it  to  be  the  "dwelling-house  and  habita- 
tion" of  the  gatekeeper,  is  sufficient.    Rex  v.  CahilL         36 

56 


443 


INDEX 


WEITEBOY^continued. 

3.  Evidence  to  support  an  indictment  under  the  Whitcboy  Act. 
Rex  V.  Carroll.  Page  78 

It  is  not  necessary  to  prove,  by  distinct  evidence,  that  the  coun- 
try was  in  a  state  of  disturbance,  if  the  crime  itself  bo  clearly 
a  Whiteboy  oflence,  as  the  circumstances  attending  it  may 
demonstrate  the  country  to  be  in  such  a  state.  Ibid. 

4.  An  indictment,  charging  that  the  j)risoncr  did,  "by  threats 
and  menaces,  threaten  violence  to  the  person  of  one  J.  G.  in 
the  event  of  his  not  taking  back  into  his  employment  a  certain 
man  whom  he  had  then  lately  before  discharged  from  his 
service,"  is  bad.  Such  an  indictment,  supposing  it  were 
good,  is  not  supported  by  evidence  that  J.  G.  was  agent  to 
another  person,  and  hired  servants  to  be  employed  about  the 
work  of  that  person,  which  J.  G.  superintended ;  and  that  the 
discharge  of  one  of  these  servants  was  the  occasion  of  the 
threats  stated  in  the  indictment.     Rex  v.  Flannery.  243 

See  Riot. 


WITNESS. 

1.  A  man  jointly  indicted  with  others,  and  who  has  pleaded 
not  guilty,  cannot  be  a  witness  for  the  prosecution,  whilst 
his  plea  stands.    Rex  v.  Ryan.  5 

2.  The  prosecutor's  wife  is  a  competert  witness  for  the  de- 
fence.    Rex  V.  Houlton.  24 

3.  It  is  no  objection  to  the  testimony  of  a  wife,  that  she  is 
brought  to  contradict  the  testimony  of  her  husl)and.       Ibid. 

4.  Where  a  witness  was  called  by  the  Crown,  and  the  Crown 
declined  to  examine  him,  but  permitted  him  to  be  cross-ex- 
amined, and  then  re-examined  him,  and  then  "produced  his 
depositions  to  show  that  what  he  had  therein  stated  varied 
from  his  evidence  at  the  trial :  Held,  that  a  conviction  under 
these  circumstances  was  wrong.     Rex  v.  Moron.  i)l 

5.  Where  a  witness,  after  having  been  examined  for  the  prose- 
cution, fainted  shortly  after  the  commencement  of  his  cross- 
examination,  so  as  to  render  it  impossible  for  him  to  give 
any  further  evidence;  held,  by  seven  Judges  against  five,  that 


TO    THE    PRINCIPAL    MATTERS. 


443 


WITNESS— continued. 

a  conviction  upon  such  evidence  ns  had  been  already  given 
by  this  witness,  taken  together  with  the  evidence  of  the  other 
witnesses,  was  good.    Rex  v.  DonUn.  Page  123 

See  Medical  Witnkss. 

YACHT. 

The  owner  of  a  yacht  is  not  entitled  to  compensation  for  the 
malicious  burning  of  it,  under  the  19  &  20  Geo.  III.  c.  37. 
Galway  Presentment.  71 


THB  RND. 


{•B'iHtitiliJfH^'IrJiiJJ^IJn:*^ 


